Come November, the United States citizens will vote for the next president. While all presidential elections cause differences of opinion (and sometimes hurt feelings), when can an employee talk politics at work? When can employees talk politics outside of work? The answer is going to be different depending on whether your organization is public or private.

Public Employers

Public employees do not lose their First Amendment rights merely because they work for the government. Public employers cannot condition employment on political affiliation because if the First Amendment protects an employee based on what they have said, it must also protect them from adverse action based on what they believe.

Balancing Public Concern and Workplace Regulation

But what if the employee causes issues in the workplace because of their political beliefs – whether they express those political beliefs on or off duty? The First Amendment protects only statements that are a “matter of public” concern – not of private pursuits, such as complaining about one’s salary. Clearly, one’s opinion as to who should be the country’s next president will be considered speech that is a matter of public concern.

But public employers should have a right to regulate the workplace. In recognition, the Supreme Court applied a “balancing test,” in which the courts will determine whether the speech was made in appropriate “time, place, and manner.”

Case Study: Social Media and Political Expression

After Donald Trump won the election in 2017, an employee who worked for a public entity made a post on her public-facing Facebook page expressing excitement over Trump’s victory. In responding to another’s post, the employee responded to someone else’s comments using some of the same words. The post read, “Thank god we have more America-loving rednecks. Red spread across all America.” If the employee’s post stopped at this statement, it might have been deserving of First Amendment protection. The employee, however, continued her post using racially charged language. She also identified her employer in the post.

Her public employer was not too pleased with the employee’s use of racially offensive words, nor were her co-workers. Several co-workers openly complained to Human Resources about the post. One even sent an anonymous text to the HR Director with a screenshot of the post, asking, “When is this ever acceptable?” Her employer terminated her for the Facebook post, and she filed suit, claiming a violation of her First Amendment rights.

In the ensuing court decision, the court had no difficulty in finding that the employee’s statement was political in nature. The court, however, found that her speech was not constitutionally protected, and noted that her post caused disharmony among her co-workers. The court was particularly concerned with her refusal to apologize for the statement – instead referring to her co-workers as “hypocrites.” Thus, the court found that if the employer had not discharged the employee, the individual’s continued presence in the workplace would have exacerbated the disharmony, given her lack of concern for the effect that the comments caused her co-workers.

Private Employers

Private employers are not subject to the First Amendment, so they have a little more leeway in disciplining employees for their political speech. However, private employers should be aware that many states have statutes protecting employees’ political speech. These states vary in their breadth of protection; therefore, competent legal advice should be obtained before terminating an employee for political speech.

Navigating Political Expression and Social Media

Private employers sometimes face public backlash over their employees’ political speech and want to discipline the employee in question. Take, for example, an employee who was riding her bicycle off duty and decided to flip off Trump’s motorcade. The photo went viral, and the employee even posted the picture on her social media accounts. Her employer terminated her for alleged violations of its social media policy prohibiting “lewd” and “obscene” social media content. While the court dismissed her First Amendment claims since it did not apply to private employers, it was noted that she may have a sex discrimination case, as a male employee posted vulgarity in a social media post several months prior to her post and was not disciplined.

Case Study: Political Views and Employment Termination

During President Trump’s inauguration, Bart Hubbuch, a pro football writer at the New York Post, tweeted a list of his idea of the greatest tragedies in American History. His employer terminated his employment two weeks later. Hubbuch immediately filed a lawsuit against the paper, claiming a violation of NY Labor Law §201-d, under which a private employer may not terminate an employee for expressing their political views on their own time outside of the workplace. Hubbuch eventually dropped the case because there was evidence that he responded to an email from his boss three minutes before posting the tweet, which the court would have likely construed as the employee not, in fact, being “off company time.”

What to Consider Doing Now

Of course, you may want to make sure that you have protected your right to discipline employees for political speech if that speech harms your business or impacts the harmony in the workplace. Other considerations:

• Review your code of conduct, ethics, and conflicts of interest policies
• Review your social media policy
• Let employees know the boundaries when commenting publicly on political activity