As the 2020 general election approaches with many employees working remotely and participating on social media platforms, employers can anticipate that employees will engage in political speech and activity in the workplace. Political speech includes a wide spectrum of activities beyond communicating by written or spoken words on a political topic. Other forms of expression that constitute political speech include wearing clothing or other accoutrements endorsing or opposing a person, party or issue; engaging in symbolic speech such as participating in demonstrations; contributing to campaigns; handing out campaign literature; and at least one court has held that “liking” a post on Facebook is political speech. This election year, acrimonious partisan politics, a global pandemic, and economic and social issues that have impacted nearly every worker have generated strong opinions about candidates and issues. Opinions expressed in this highly politicized atmosphere though, can undermine worker productivity or even result in claims of harassment, discrimination, retaliation or a hostile work environment.

As a result, employers face the complicated legal and practical issue of lawfully regulating speech in the workplace to ensure that the workforce remains productive and respectful of the rights and differences of co-workers. Maintaining a productive and harmonious workforce requires that employers understand the limits on their right to regulate or impose rules that limit political speech and expression in the workplace and enforce the rules in a lawful manner. The nature of the lawful restrictions that an employer can impose depends on the designation of the employer as either a public-sector or private-sector employer. While this post will discuss restrictions on both types of employers, the main focus is on the right of private-sector employers to limit political activity in the workplace.

Public-sector employers

A public employer is a municipal, county, state or federal government or governmental agency, and the public employer’s right to regulate protected speech is constrained by the constitutional restrictions of the First Amendment. The right to engage in political and ideological speech lies at the core of speech protected by the First Amendment. Restrictions on political speech imposed by public employers will be subject to strict scrutiny if challenged in the courts and will only be upheld by the courts if the restriction is narrowly tailored to satisfy a compelling government interest. However, a government employee’s statements that arise out of official job duties are not protected by the First Amendment. A private grievance expressed by a government employee also is not protected by the First Amendment. If a government employee’s speech is not a private grievance but a matter of public concern, however, the speech may be protected if the employee’s right to free speech outweighs the employer interest in regulating the speech.

The federal statute, known as the Hatch Act, also places lawful restrictions on the partisan political activity of state, local and federal government employees. The Hatch Act distinguishes between employees who are less restricted and employees who are “further restricted,” and the extent of the restrictions imposed will depend upon the employee’s classification. Generally, the purpose of the Hatch Act is to balance the government employer’s interest in maintaining a productive, competent, and impartial workforce and the employees’ right to engage in the political process. The prohibitions on all federal employees include a prohibition on engaging in political activity while on duty, while wearing a uniform or official identification, and while on federal property or in a federal vehicle; influencing the political activity of a person appearing before the employing agency; soliciting campaign contributions or hosting fundraisers; and running as a candidate in a partisan election. Due to the advent of social media and its widespread use, the U.S. Office of Special Counsel offers some guidance on the Hatch Act and federal employee use of social media and email. The restrictions on state and local employees under the Hatch Act are narrower, but some states and the District of Columbia also have enacted “Little Hatch Acts” that regulate political activities in which employees of the state may participate.

Private-sector employers

Any employer that is not a public-sector employer is a private-sector employer. The First Amendment protections apply to government-imposed restrictions on speech, not private-sector restrictions. Generally, the right of private employers to discipline or fire employees because of their speech or political activity is necessarily broad to ensure the employer’s ability to operate a productive and harmonious workplace. Narrow limitations on the employer’s right to control their workplace and restrict employee speech are imposed by both Federal and state statutes.

National Labor Relations Act

The provisions of the National Labor Relations Act (NLRA) apply to most private-sector employers and to private-sector union and non-union employees, but does not apply to federal, state or local government employers. Section 7 of the NLRA “guarantees employees… the right to… engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection…” The clause, “other mutual aid or protection” provides protection for employees who join together to discuss political and social activities that affect the terms and conditions of their employment. The U.S. Supreme Court precedent establishes that protection under §7 of the NLRA is not limitless and provides guidance on the extent of the protection offered by the mutual aid or protection clause.

What speech is protected in the workplace under the NLRA?

A sufficient connection to the terms and conditions of employment is required.

The Court has construed the mutual protection clause to protect employee activity when acting “in support of employees of employers other than their own” or “ to improve their lot as employees through channels outside the immediate employer-employee relationship.” The inherent requirement in the mutual aid and protection clause is the existence of a sufficient nexus between the subject matter of the activity and the employee’s terms and conditions of employment. When the relationship between the employee activity and the employee’s interest as an employee becomes too attenuated though, the activity loses protection under the NLRA. Differentiating among situations as to whether that nexus exists is exemplified by the following National Labor Relations Board (NLRB) General Counsel advice memos that explicate the difference between protected and unprotected activity under the NLRA.

Political activity unrelated to employment is not protected under the NLRA.

The General Counsel released an advice response memo dated August 13, 2020 which discusses the termination by a labor organization of a charging party who represented uniform police officers, among other groups. The charging party was terminated after testifying and advocating for police reforms as a state legislator before a local county council. According to the advice memo, the evidence demonstrated that the charging party’s actions were in furtherance of a personal political agenda and in the interest of the community at large in an attempt to bring about greater transparency and accountability in law enforcement. In this case, the NLRB General Counsel concluded that the political activity lacked any nexus to the charging party’s employment or to any employment concern of an employee. It therefore recommended that the Region dismiss the charge, absent withdrawal of the charge.

Abusive, discriminatory, derogatory or significantly disruptive speech is not protected.

A General Counsel advice memo dated May 30, 2018, describes a social media company’s (Company) request for reconsideration of a resolution that concluded that an employee’s comments on an internal social networking platform fell within the purview of protected concerted activity. The employee’s posts were critical of the Company’s diversity and social justice initiatives and, in a series of emails to the Human Resource Department and a Vice President, sought clarification on the scope of the anti-harassment policies – “specifically whether the policies prohibit criticism of diversity and inclusion initiatives.” The employee also complained about harassment of politically conservative employees who held unpopular workplace views and challenged the Vice President on the application of the policies. The employee was instructed to stop posting comments, given a final warning by the Human Resource Department, and was cited for insubordination.

The NLRB General Counsel reaffirmed that the employee’s speech was protected by the NLRA and that the Company had unlawfully applied a permissible work rule to protected concerted activity. In reaching its conclusion, the General Counsel readily acknowledged that the employee’s posts were “insensitive,” “hurtful,“ “provocative” and the employee’s choice of forum “not ideal” given that the posts appeared in a forum designed to be supportive of minorities and that encouraged sharing of challenging personal experiences. However, the General Counsel concluded that the comments were not “so offensive” to be unprotected.

In contrast, unprotected speech is speech that uses words described as “derogatory,” “abusive” or “discriminatory” that lead to a hostile work environment or discrimination even if the speech involves concerted activities related to working conditions. As an example of unprotected speech, the General Counsel referred to a separate incident reported in another advice memo regarding the Company’s termination of an employee who circulated a memorandum in opposition to the Company’s diversity initiatives. The memo at issue argued, in part, that innate differences between men and women might explain the lack of equal representation of the sexes in tech and leadership. The General Counsel characterized the statement as “so offensive and discriminatory” that it caused serious disruption within the workplace. The General Counsel also found it persuasive that the Company specifically identified the discriminatory comment as the sole reason for the termination while generally affirming the employee’s right to engage in protected speech. The Company’s decision to terminate in this separate incident was considered lawful.

Key takeaways on protected speech under the NLRA

The above contrasted advice memos demonstrate that speech and expression protected by the NLRA requires that:

• A connection exists between the subject matter of the employee’s activity and the terms and conditions of employment;
• Speech or conduct engaged in by the employee be free from discriminatory, abusive or derogatory language and does not significantly disrupt work process or constitute discrimination or harassment;
• The speech or conduct be balanced against:
  • An employer’s lawful permissible workplace rules;
  • An employer’s obligations to comply with EEO laws;
  • An employer’s right to promote a work environment that is diverse and inclusive; and
  • An employer’s obligation to prevent conduct that leads to a hostile work environment or discriminatory workplace.

State laws

Most, if not all, states also have enacted laws establishing parameters on the types of prohibitions on political activity that employers can assert over their workforce. The state statutes vary but contain common themes, such as prohibitions on:

• Acts that coerce or influence employees to support or oppose a candidate or issue by linking employee political activity to workplace consequences;
• Threats or rules that prevent employees from participating in any political activities;
• Directing political affiliations, or discharging employees based on political affiliations;
• Disciplining or discharging a party for lawful, off-duty political activities, which can include online activity;
• Maintaining records on an employee’s off-duty political activity, unless authorized by the employee; and
• Discriminating against employees who refuse to participate in employer communication of political matters.

Finally, a number of states have enacted voting leave laws which address the amount of time off from work to which a worker is entitled for the purpose of voting; whether the time off is paid; limitations on the amount of time off; and notice requirements. Employers must ensure that they comply with state statutes that address political activity in the jurisdictions in which the employer is located.

What you need to know

Private employers may restrict political activity that occurs during work hours so long as the restrictions carve out the narrow exceptions imposed by federal and state statutes. As we enter the last stretch of the general election, private-sector employers should be particularly aware of employees’ rights and limits on employee rights related to political activity in the workplace and be prepared to act proactively to mitigate issues before they arise by taking the following actions:

• Adopt and implement work rules related to legitimate employer interests;
• Remind employees of anti-discrimination, harassment, retaliation policies;
• Apply all policies and rules in a consistent and non-discriminatory manner;
• Remind employees of lawful, non-discriminatory workplace rules that limit political speech and expression to work-related activities;
• Train managers and supervisors on lawful policies and rules related to political activity; and
• Carefully evaluate political speech that occurs in the workplace. When disciplining workers for unprotected speech and expression in the workplace, specify the unprotected speech for which the employee is being disciplined while recognizing the employee’s right to engage in other types of speech and conduct that are protected.

Tracey Oakes O’Brien, Knowledge Manager, is a co-author of this content.

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