Managing Political Speech in the Workplace

As the 2024 general election draws near, employers can anticipate a rise in political expression from employees both inside and outside of the workplace. Political speech encompasses a broad array of activities, extending far beyond verbal or written communication on political topics. For example, wearing clothing or accessories that endorse or oppose certain issues (N.L.R.B. v. Mead Corp.); wearing wrist bands in support of political causes (Tinker v. Des Moines); displaying bumper stickers, campaign buttons or political posters (Ferguson Police Officers Ass’n v. City of Ferguson); donning insignia such as buttons or decals (Home Depot USA, Inc. and Antonio Morales Jr.); and even “liking” a social media post can be viewed as protected speech (Bland v. Roberts).

This election cycle, coming on the heels of recent years marked by intense partisan divisions and ongoing global conflict, has fostered strong opinions about various candidates and political issues. Expressions of political opinion in such an intensely polarized environment can diminish workplace productivity or lead to claims of harassment, discrimination, retaliation, or the creation of a hostile work environment.

As a result, employers are confronted with the complicated legal and practical issue of regulating workplace speech to ensure their workforce remains productive, while also respecting employee rights. To effectively do so, employers must understand their legal ability to impose rules that limit political speech in the workplace and how to implement those rules in a lawful manner.

Private Employers Have the Right to Restrict Politics in the Workplace.

The First Amendment protects political and ideological speech from governmental restriction; therefore, it does not limit private employers’ right to regulate employee speech.

Indeed, private-sector employers have a duty to limit speech if it is discriminatory, harassing, or intimidating towards another employee under Title VII of the Civil Rights Act of 1964. Employers should have effective anti-harassment policies in place, as well as clear complaint processes, and regular training. To maintain a productive and harmonious workplace, private-sector employers have extensive discretion to limit speech in the workplace and take disciplinary action against employees for their political speech. However, private sector employers’ free speech restrictions are limited by the protections in the National Labor Relations Act (NLRA).

Employees’ Political Speech Is Protected Under the NLRA.

The provisions in the NLRA apply to both union and non-union employees within private-sector employment. Section 7 of the NLRA gives workers the right to engage in concerted activity to better their working conditions and speak with coworkers about the terms of their employment. It provides employees protection for meeting to discuss political and social activities that affect their employment duties and conditions. However, Supreme Court precedent and National Labor Relations Board (NLRB) decisions establish that employee protection under the NLRA is not limitless.

Be aware: Supervisors, agricultural laborers, and independent contractors are not protected by the NLRA.

It Is Unlawful for Employers to Prohibit Employee Speech Related to Working Conditions and Terms of Employment.

For the NLRA to protect the employee’s speech, a sufficient connection must exist between the speech and the terms and conditions of employment. This year, the NLRB broadened Section 7 protections to include employee speech and activities that are related to social movements and political activity not directly related to an employee’s employment. In Home Depot USA, Inc. and Antonio Morales Jr., the NLRB found that an employee writing “Black Lives Matter” (BLM) on their apron was a “logical outgrowth” of concerted activity about prior complaints of discrimination and racism allegations brought to the employer around the time of the “BLM” incident. Even though the employee acted individually, the employee’s actions were deemed to be for “mutual aid or protection” because the previous complaints of discrimination involved working conditions.

As a result of this decision, employers need to be aware that actions dealing with similar political and social issues framed as allegations brought against the employer will most likely be deemed protected speech by the NLRB.

Employers May Create Preventive Policies Regarding Political Speech.

Employers can craft dress code policies prohibiting wearing apparel or accessories with political statements, so long as they comply with the NLRA protections. Employers will want to ensure the policy is neutral—perhaps prohibiting all forms of political messaging that are unrelated to the workplace. Employers can also create policies prohibiting the distribution of political campaign literature and other non-solicitation rules. Key to ensuring compliance with NLRA protected speech, employers must ensure that any such policies are applied consistently across the board. Employers should not single out any particular messaging.

Employers should prohibit speech that is abusive, discriminatory, derogatory or leads to a hostile work environment. This kind of speech is not protected under Section 7, even if the speech relates to a concerted activity.[1] Further, defamatory or insulting speech that is false is not protected under the NLRA.[2]

Employers Must Balance Protected Political Speech and Religious Freedoms with Protection from Harassment.

Political conversations in the workplace can potentially lead to claims of employer discrimination, harassment, and retaliation under federal, state, or local anti-discrimination laws. For instance, if the political discussion involves race, color, sex, sexual orientation, gender identity, national origin, religion, age, or disability, anti-discrimination claims could arise. Employees might allege that an employer’s action in response to a political discussion is evidence of, or serves as a proxy for, illegal employment discrimination. Employers should think twice and consult with counsel before disciplining[3] an employee engaging in any such discussion.

For example, the EEOC expressly notes that sex harassment under Title VII can include discrimination based on a decision to have or not have an abortion. However, the EEOC clarifies that it is not accurate to consider any workplace discussion about abortion would be considered unlawful harassment. Conduct must be evaluated on a case-by-case basis. No bright line has been drawn.

An employer should accommodate an employee’s sincerely held religious practice of engaging in religious expression in the workplace, unless doing so would create, or reasonably threatens to create, a hostile work environment, according to recent guidance from the EEOC. Title VII defines “religion” to include “all aspects of religious observance and practice, as well as belief.” According to the EEOC, the term is broad and is not limited to traditional or organized religions. However, social, political, or economic philosophies, as well as mere personal preferences, are not religious beliefs protected by Title VII.

Employers are left with the difficult task of walking the line to ensure the protection of religious freedoms while also ensuring those freedoms do not cross the line into harassment. A 2020 Sixth Circuit decision, Meriwether v. Hartop, held that a public university violated a professor’s constitutional right to free speech by refusing to accommodate his request not to refer to a transgender student using pronouns consistent with the student’s gender identity, a practice that conflicted with his religious beliefs.

If debates arise among employees regarding protected characteristics, and an employee requests a religious accommodation, it is important for employers to have a clear process in place for managing such requests. Employers should have open, interactive dialogues with their employees discussing what an accommodation would look like. Is it reasonable? Would it cause the business undue hardship? Would it contribute to a hostile work environment? Employers may want to consult with legal counsel.

Employers Should Consider Applicable State Laws.

At least eleven states have laws that prohibit employers from disciplining, or otherwise restricting, employees from expressing their political affiliations or views or being affiliated with a political party.[4]

Some states—like Kansas—have similar protections as the NLRA at the state level, which make it unlawful for an employer to interfere with an employee’s exercise of their right to engage in concerted activities.[5] Other states have even broader protections of employee political speech. For example, in California, employees expressly cannot be discriminated against for their political affiliation, political beliefs, or political activity outside the workplace. However, the protection does not necessarily give employees the ability for political expression in the workplace. Employers may still be permitted to discourage or restrict the ability of an employee to discuss political matters with clients or coworkers if it disrupts productivity or job performance.

Key Takeaways

Employers must have clearly written employment policies and rules that address employee rights pertaining to political speech to minimize liability.Private employers may restrict political activity that occurs during work hours if they meet the exceptions imposed by federal and state statutes. As we enter the election season, private employers ought to be aware of employees’ rights related to political activity in the workplace. Employers may consider taking the following actions to mitigate issues that may arise:

• Review employee handbooks to add political speech guidelines and ensure your workplace conduct policies are up to date;

• Remind employees of lawful, non-discriminatory workplace rules that limit political speech to work-related activities;
• Remind employees of anti-discrimination, harassment, and retaliation policies;
• Review complaints about speech related to the election in a prompt and diligent manner and discipline the conduct consistent with employer established rules;
• Apply all speech policies and rules in a non-discriminatory, neutral, and consistent manner;
• Train your management with disciplinary authority on lawful policies related to political activity and how to address unproductive conversations; and
• Ensure careful evaluation of political speech that occurs in the workplace to ensure it is not protected concerted activity under the NLRA. When disciplining employees for unprotected speech, clearly articulate the reason the employee is being disciplined.

*Written with the assistance of Anna Donaldson, a summer associate in Husch Blackwell’s Kansas City office.

[1] See Media General Operations, Inc. v. N.L.R.B., 394 F.3d 207 (4th Cir. 2005) and Southern Bakeries, LLC v. National Labor Relations Board, 871 F.3d 811 (8th Cir. 2017).

[2] See Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir. 2002).

[3] Employers that work with union employees should ensure they are adhering to the agreed to established collective bargaining agreements when addressing speech issues. The NLRB requires mandatory subjects in CBAs include procedures for discipline.

[4] See California (Cal. Lab Code §§ 1101; 1102); Colorado (Colo. Rev. Stat. §§ 8-2-102; 108); Connecticut (Conn. Gen. Stat. § 31-51q); Illinois (820 ILCS 40/9) (only prohibits employers from keeping a record of an employee’s political associations, activities, publications, or communications); Louisiana (La. Rev. Stat. §§ 23:961, 23:962); Michigan (Mich. Comp. Laws § 423.508); Nevada (Nev. Rev. Stat. § 613.040); New York (N.Y. Lab. Law § 201-d); North Dakota (N.D. Cent. Code §§ 14-02.4-01, 14-02.4-03); South Carolina (S.C. Code § 16-17-560); and Utah (Utah Code § 34A-5-112).

[5] Kan. Stat. Ann. § 44-808.

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