With another presidential election only a few months away, escaping coverage and conversations about candidates and campaigns seems nearly impossible. While there is nothing new about political coverage increasing during an election year, the unprecedented events during this year’s election cycle, along with the extreme polarization of modern-day politics in America, have led to increased levels of passionate discourse between those with opposing viewpoints. Employers should not be surprised that these political discussions impact the workplace and should be prepared to lawfully respond to these situations.

Listed below are general legal frameworks that may apply to an employee’s political speech, and therefore should be considered by employers before taking any action against an employee for such speech:

1. First Amendment
   When facing discipline for political speech in the workplace, employees consistently cite the First Amendment and argue that they are entitled to free speech. The First Amendment does protect freedom of speech; however, that protection is focused on government action. In contrast to public employers (including federal, state, and local governments), the First Amendment’s constitutional protections generally do not apply to private-sector employees. In fact, even public employees maintain only limited speech rights in the workplace. Public employers may discipline employees when their speech runs afoul of a balancing test that compares the government’s interest in limiting the speech with the employee’s First Amendment rights. In short, the First Amendment does not give any employee an unlimited right to say what they want in the workplace.
2. National Labor Relations Act
   Although private employers do not have to engage in the same considerations as public employers with respect to the First Amendment, the opposite is true with respect to the National Labor Relations Act. The NLRA applies to most employees in the private sector but does not apply to government employees. Along with protecting employees’ right to form or join unions, the NLRA also permits employees to engage in protected, concerted activities to address or improve working conditions. Employees protected by the NLRA therefore can discuss political and social activities that affect and involve the terms and conditions of their employment. Employer action that may be interpreted as deterring, limiting, or prohibiting this speech could lead to an unfair labor charge against that employer in front of the National Labor Relations Board.
3. Anti-Discrimination Laws
   Anti-discrimination laws, such as Title VII, may likewise place restrictions on speech in the workplace. Where political speech intertwines with commentary on protected characteristics, such as race, gender and religion, the risk of discrimination and harassment concerns rise. Additionally, employers must ensure that actions taken against employees based on speech are applied in a nondiscriminatory and non-retaliatory manner.
4. State and Local Laws
   Employers must also consider whether state and local laws protect employee political speech. For example, municipal employees in Oklahoma may actively participate in partisan and nonpartisan political activities, so long as the employee’s participation occurs while off duty and not in uniform. However, municipal employees may attend and express their views at city council meetings, or any other public meetings of municipal entities. Other states, such as California, Colorado, and New York, for example, have enacted statutes protecting employee political activity while off duty and limiting employers’ ability to discipline employees for such activity.

Employer takeaways

Based on these general legal frameworks, employers should keep the following things in mind:

1. Employers must first determine whether they are subject to any federal, state, or local laws addressing political speech. Based on this determination, employers should ensure all policies and procedures are updated to comply with applicable law.
2. Employers must also remember that, even where an employee may have protected political speech, employers are not required to permit political speech where it is abusive, offensive, or threatening. Whether an employee’s speech is abusive, offensive, or threatening will depend on a detailed analysis not only of the facts underlying the political speech (e.g., the place of discussion, the subject matter of the discussion, the nature of the speech, etc.), but also which laws apply to the employee.
3. Employers need not navigate these overlapping (and often, confusing) legal frameworks alone, but can reach out to counsel as situations arise to ensure the employer is complying with applicable law while maintaining productivity and safety in the workplace. For assistance, please contact your McAfee & Taft Labor & Employment Group attorney.