Following an election season like no other, and looking forward to this year’s election cycle, many individuals have started to reflect on the rights of employees to engage in the political process. This quick legal reference is not intended as legal advice and should not be utilized without consultation with an experienced election law and campaign finance attorney.

Under the First Amendment to the United States Constitution, all individuals have the right to freedom of expression/speech. This amendment, and its interpretation, is at the intersection of State and Federal regulations implicating the relationship between employers and employees concerning political expression and political activities in New York. Some highlights of laws passing through this intersection are below.

New York State Election Law

Under New York Election Law § 17-150, employees are specifically afforded protection from employer interference with the First Amendment right to freedom of speech.. This section strictly prohibits employers from making “threats, express or implied, intended or calculated to influence the political opinions or actions of employees.”

New York Labor Law

In the early 1990s, New York State adopted Section 201-d to the New York Labor Law. This statute prohibits discrimination on the basis of an employee’s “political activities outside of working hours, off of the employer’s premises and without the use of the employer’s equipment or other property.”[1] N.Y. Lab. Law § 201-d(1)(a). Importantly, New York’s Labor Law defines “political activities” as running for public office, campaigning for a candidate for public office, or participating in political fundraising activities.

However, New York’s Labor Law protections for employees are not without limits. Section 201-d does not protect an employee’s actions that the employer deems to be illegal. N.Y. Lab. Law § 201-d(4). Further, New York’s Labor Law does not protect an employee when their political activity creates a “material conflict of interest related to the employer’s trade secrets, proprietary information or other proprietary or business interest.” N.Y. Lab. Law § 201-d(3)(a).

National Labor Relations Act

The National Labor Relations Act (the “NLRA”) has also been deemed to provide a framework governing speech and political activity in the workplace. The NLRA provides that certain non-supervisory employees must be allowed to participate in political activity related to labor or working conditions. The National Labor Relations Board has determined that employees have the right to (1) discuss legislation that impacts working conditions; (2) campaign for a political party if that activity is related to the employee’s working conditions; and (3) discuss legislation regarding working conditions. See Chipotle Services LLC & Pennsylvania Workers Organizing Committee, Nos. 04-CA-1437314, 04-CA-149551) (holding an employer’s ban of political discussion in the workplace violated the NLRA).

At the core of NLRA is the fact that the statute prohibits employers from taking actions that “chill” the exercise of a protected concerted activity (i.e., an Article 7 right). Section 7 affords employees “the right to self organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”[2]

Conclusion

In today’s environment, politics can permeate and penetrate a working environment. While employers have the right to limit an employees’ political activity while at work, subject to certain limitations, the employer has limited options to limit an employees’ activities once that employee has left the workplace and is engaging in the activity on their own time. Given the ever-changing nature of the landscape with remote work and social media activity, caution is warranted when attempting to limit employee political activity.

[1] Some caution is warranted here, particularly with regard to an employee’s social media activities. See https://profootballtalk.nbcsports.com/2017/02/08/bart-hubbuch-sues-new-york-post-over-trump-tweet-termination/

[2] See https://www.nlrb.gov/about-nlrb/rights-we-protect/the-law/interfering-with-employee-rights-section-7-8a1