With the Republican National Convention wrapping up this week, political conversation is assuredly becoming a more common occurrence in workplaces around the country. Importantly for employers, political action and speech in the workplace threatens disruption and damage to relationships among coworkers, as the political divisions in this country are exceedingly acute this campaign season. This leads us to the question we are addressing today in the second in our election-year series on the Work Knowledge Blog: whether employers can restrict political speech of their employees. In other words, is there such a thing as “free speech” in the workplace?
First, it is worth noting at the outset that the First Amendment’s right of free speech does not apply to private employers. See, e.g., Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 708 (1985). In other words, the Constitution does not protect an employee’s speech in the workplace, and similarly, it does not place restrictions on an employer’s ability to restrict employee speech.
So are there laws that do impact an employer’s ability to set boundaries when it comes to politics in the workplace? The answer is that some states have laws that limit what employers can do in response to, or to restrict, employee political conduct. For example, in Texas, it is unlawful for an employer to retaliate against an employee based on that employee’s voting record or refusal to disclose his or her record. Specifically, the statute provides that it is a third degree felony if the employer “subjects or threatens to subject the voter to a loss or reduction of wages or another benefit of employment” because that employee “voted for or against a candidate or measure” or “refused to reveal how the voter voted.” The full text can be found at Tex. Elec. Code § 276.001. Similarly, California law prohibits an employer from adopting policies or using the threat of termination to try to influence its employees’ political activities. See California Labor Code Sections 1101 and 1102.
Staying mindful of the patchwork of state laws that may apply, employers often want to take steps to minimize disruptive political discussions and other activities as much as the law will allow. We will discuss workplace policies more broadly in a later posting in this series – as well as the significant risks under the National Labor Relations Act for practices and procedures that are overly restrictive – but you may wish to consider the following approaches, depending on what states you operate in:
- Prohibit employees from using company resources (printers, copiers, mailing resources, phones) for political activity. Not only does it hurt your bottom line, but it can present a distraction to the employee (and others), and create a false impression that the employer supports the employee’s efforts.
- Determine whether a policy prohibiting employees from discussing controversial topics – including politics – during working hours and on the employer’s property. A policy directed solely at political discussions may seem more heavy-handed than a general policy that is aimed at disruptive conversations. Be careful, however, not to restrict speech that would relate to the terms or conditions of your workers’ employment, as that could run afoul of the National Labor Relations Act.
- Consider revising your non-solicitation policy to ensure it covers political speech, while maintaining compliance with the National Labor Relations Act.
- You can require that company vehicles (and possibly employee vehicles driven on company business) remain free from any campaign material, such as bumper stickers or window decals. This may be especially important for companies in service industries, since your clients may disagree with the message displayed, or simply consider the company unprofessional for permitting its drivers to display political statements on vehicles.
- Whether you can place restrictions on your employees’ off-duty conduct (such as volunteering for campaigns, or posting political messages on social media) also depends on state law; some states grant wide latitude, others do not allow employers to take action against employees based on (lawful) off-duty conduct.
One of the most important aspects of monitoring employee conduct and enforcing policies concerning political activity is consistency. An uneven approach – especially a partisan one – leaves the company open to attack and creates an unwelcoming environment, which often leads to worker dissatisfaction and retention issues (and potential claims, as we’ll be discussing soon).
Finally, if your company is a charitable 501(c)(3) organization, you should be aware that political speech can jeopardize an entity’s tax-exempt status in certain circumstances. Should you have concerns about whether your policies or practices risk tax-exempt status, we recommend reaching out to an attorney with experience in such matters.
The next few months will be politically charged and it is inevitable that employees will bring their concerns to work. A thoughtful approach, well-crafted policies, and consistent enforcement will go a long way towards ensuring a peaceful workplace as the November election approaches. Should you have any questions about your business’s legal rights and restrictions in these arenas, you should seek advice from an attorney with an appropriate employment law background.