Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Can an employer regulate its employees' political speech or activity in the workplace?
Well, it's that time of year again. The closer we get to Election Day, the more likely we may see political activities breaking out in our workplaces. These can be loaded exchanges. A civil discussion about a political affiliation can turn volatile at the drop of a hanging chad. In today's climate, people get easily fired up when discussing same sex marriage, terrorism, bathroom designations and, of course, candidates. So what's an employer to do if this activity negatively impacts its workplace? The first consideration is the First Amendment.
It does secure essential rights, freedom of speech, the right to assemble. But it does not apply to a private employer's ability to regulate employee activity. Though that may not apply, your jurisdiction may have broad statutory protections. Certain states prohibit employers from taking action against employees based on their lawful off duty conduct. In these places, employer action limiting employee political expression requires careful consideration. Also, consider the National Labor Relations Act.
Even non-union employees may not be retaliated against for discussing concerted activities of a political nature when those discussions relate to the terms or conditions of employment, such as minimum wage or equal pay. So the next time an employee shows up at work wearing that political pin and you feel the need to do something, consider whether any state or federal limitations on political activity or lawful off duty conduct exist. Evaluate the nature of the speech and the extent to which it unduly disrupts the workplace.
Assess whether the speech violates company policy. Racially offensive comments or hate speech, even if supposedly political, may be subject to discipline. Ask whether the conduct is protected under the NLRA. Add the words "equal pay for all" to a provocative political pin and you may need to take a step back. And whenever possible, consult counsel before taking action. Happy voting.