Politics in the Workplace and the New Administration

In the lead-up to the 2024 presidential election, employers navigated the difficult terrain of managing employees’ expressions of diverging political and social beliefs in the workplace. Now that the 2024 election has passed and the second Trump administration has taken the reins of the executive branch, employers face a new question: How will the change in administration impact the legal concerns associated with politics in the workplace? Many changes have already come to fruition, and employers should expect many more to follow. 

How a Shift in Protected Concerted Activity Could Impact Workplace-Politics Concerns

The National Labor Relations Act (NLRA), a federal law that applies to most private employers, protects unionized and non-unionized non-supervisory employees who engage in concerted activities for purposes of mutual aid or protection. This conduct is known as “protected concerted activity.” While the NLRA does not explicitly protect employees who engage in workplace discussions about politics, the NLRA restricts an employer from limiting non-supervisory employees’ communications about wages, hours and other terms or conditions of employment. Therefore, some politically related activity may be protected under the NLRA depending on the circumstances.

The foundational framework for evaluating whether employee political speech qualifies as protected concerted activity under the NLRA is set forth in the Supreme Court’s decision, Eastex, Inc. v. NLRB, 437 U.S. 556 (1978). Political speech and conduct can be protected concerted activity when (1) it is concerted; (2) there is a close nexus between the political expression and employment; and (3) it involves terms and conditions of employment under the employer’s control. Thus, political discussions or conduct may trigger NLRA rights when they closely relate to specific employment issues, such as employment discrimination or minimum wage increases.

During the Biden administration, the National Labor Relations Board (NLRB or Board), the federal agency that enforces the NLRA, expanded the concept of “protected concerted activity,” thereby broadening the scope of potentially politically related speech that could fall under the ambit of the NLRA. At the beginning of the Biden administration, then-Acting General Counsel Peter Ohr laid the groundwork for the NLRB’s “vigorous enforcement” of protected concerted activity as it relates to employees’ participation in political and social justice advocacy in the workplace.¹ Specifically, he issued a memorandum suggesting that the NLRB could take the position that “employees’ political and social justice advocacy” is protected by the NLRA “when the subject matter has a direct nexus to employees’ ‘interests as employees.’”² The memorandum highlighted several examples of political advocacy potentially qualifying as protected concerted activity. These included an employee’s interview with a journalist about how the minimum wage and related legislation impact her and her coworkers; an employee’s “solo” strike to attend a demonstration advocating for a higher minimum wage; and an employee’s expression of concern over immigration raids in the workplace.

Equally significantly, in 2023, the Democratic-majority Board expanded the definition of protected concerted activity in American Federation for Children, Inc., 372 NLRB No. 137 (2023) to include employee advocacy on behalf of individuals who are not “employees” as defined by the NLRA, including individuals employed by another employer. In the decision, the Board majority established a new standard for assessing whether advocacy for non-employees is for mutual aid and protection: “The question is simply whether in helping those persons, employees potentially aid and protect themselves, whether by directly improving their own terms and conditions of employment or by creating the possibility of future reciprocal support from others in their efforts to better working conditions.” Critically, the Board’s decision in American Federation for Children offers no meaningful guidance on the limits of the solidarity principle or when the prospect of future “reciprocal support” becomes too speculative or attenuated to satisfy the standard for “mutual aid or protection.” In a pointed dissent, Board Member Marvin Kaplan—who was named NLRB chair at the beginning of the new administration—criticized the majority’s reasoning and emphasized that its alternative holding constitutes nonbinding, nonprecedential dicta. His dissent signals a clear path for judicial scrutiny and suggests that the Board’s expansive interpretation may face significant challenges in the courts.

Under the NLRB’s structure, interpretations of rights under the NLRA have historically fluctuated based on the political composition of the Board, whose members are appointed by the president with the advice and consent of the Senate. The recent change in administration has already influenced how political activity in the workplace intersects with the NLRA. Notably, Acting General Counsel William Cowen recently rescinded the former acting general counsel’s memorandum that had expanded the scope of protected concerted activity. 

However, a Republican-led Board does not necessarily signal a return to prior Republican precedents. Several executive branch appointments in the current administration have diverged from traditional Republican profiles—and in some cases, have even included Democrats. As a result, it remains uncertain whether the Board will adopt a narrower interpretation of protected concerted activity. Should such a shift occur, employers would be afforded greater discretion to restrict such political discussions and conduct. 

How a Shift in Federal Anti-Discrimination Laws Implicate Workplace Political Concerns

Federal anti-discrimination laws do not prohibit discrimination based on political affiliation or activity. But politics in the workplace can potentially lead to claims of employer discrimination, harassment, and retaliation. The Equal Employment Opportunity Commission’s (EEOC) enforcement priorities shed light on the types of conversations or actions that may form the basis for future lawsuits.

On January 21, 2025, President Trump announced Andrea Lucas as the acting chair of the EEOC. In her initial statement, Acting Chair Lucas foreshadowed a shift in the agency’s enforcement priorities, emphasizing her commitment to, among other things, (1) “defending the biological and binary reality of sex and related rights, including women’s right to single-sex spaces,” (2) “protecting workers from religious bias and harassment, including antisemitism,” and (3) “protecting workers from anti-American national origin discrimination.”

On February 19, 2025, Acting Chair Lucas followed up regarding the EEOC’s emphasis on anti-American discrimination with a press release: “[I]f you are part of pipeline contributing to our immigration crisis or abusing our legal immigration system via illegal preferences against American workers, you must stop. . . .  The EEOC is here to protect all workers from unlawful national origin discrimination, including American workers.”

On March 5, 2025, Acting Chair Lucas reinforced the EEOC’s efforts regarding antisemitism with a press release detailing the agency’s plan to combat antisemitism at universities and workplaces resulting from the Hamas terror attacks on October 7, 2023. The statements included a link to file a charge of discrimination for those who believe they have been subject to religious-based harassment. This coincided with Executive Order 14188, where President Trump stated he would “[p]rotect the civil rights of our Jewish citizens” in the factsheet accompanying the executive order. 

The Israel-Palestine conflict was a hot-button issue in this past year’s presidential election, and it continues to grab headlines today. Workplace conversations about the Israel-Palestinian conflict could implicate religious or national origin discrimination or harassment claims. While some employees may view discussions on the Israel-Palestinian conflict as conversing about current events or international conflict, for other employees, the topic is deeply personal and informed by religious conviction. Workplace conversations on the topic have the potential to transform into the basis of religious- or national-origin-based discrimination or harassment claims, and the EEOC appears receptive to investigating and pursuing such claims, particularly if the allegations involve antisemitism. 

Perhaps the initiative that carries the most uncertainty—given the agency’s prior focus on groups it viewed as “historically marginalized”—is the EEOC’s focus on anti-American discrimination. The EEOC’s focus on anti-American discrimination reflects its desire to ensure U.S. citizens receive the same opportunities as foreign workers.

Although Title VII of the Civil Rights Act of 1964 (Title VII) does not prohibit citizenship discrimination, it does prohibit employers from favoring individuals of one national origin over another. The EEOC’s focus on anti-American national origin discrimination claims implicates immigration and related topics. This could include, for instance, employee discussions about border security or workplace visas. These discussion topics are more prevalent with the new administration, as immigration policy is a prime focus for agencies, including the EEOC, across the federal government. Workplace discussions on immigration-related topics like these may implicate national-origin-based claims if such conversations reveal or suggest an employer preference for foreign-born workers.

It also remains to be seen how far the EEOC will expand the scope of evidence for anti-American bias, given the lack of precedent for these claims. This could further broaden the scope of workplace discussions that could support a claim for anti-American national origin discrimination. 

EEOC v. NLRA Tension? 

The potential tension between the NLRA and EEOC is exemplified in recent EEOC and NLRB charges brought by an employer—The Louis D. Brandeis Center for Human Rights Under Law—against a union—the United Auto Workers—alleging the union violated the NLRA and discriminated against Jewish employees because the union pushed back on an employer’s policy that bars employees from posting about the conflict in Israel and Gaza. This is an example of how an employer’s attempt to limit political discussions and prevent potential national origin discrimination can conflict with an employee’s right to engage in concerted protected activity.

In her last guidance memorandum before being terminated on January 27, 2025, former NLRB General Counsel Abruzzo addressed the ongoing tension between the NLRA and the anti-discrimination statutes enforced by the EEOC. The memorandum was issued in response to criticism from employers that NLRB decisions issued under the Biden administration undercut an employer’s duty under federal and state equal employment opportunity laws to maintain a workplace free of unlawful harassment and discrimination. The memorandum underscored former General Counsel Abruzzo’s position that the NLRA and anti-discrimination statutes “are complementary and do not conflict” and that “both can and should be given full effect.” The EEOC’s silence in response to the memorandum—despite its direct implications for the agency’s enforcement mandate—casts doubt on the strength and institutional consensus behind Abruzzo’s assertions. 

Although NLRB Acting General Counsel Cowen has withdrawn the memorandum, the tension will almost certainly remain, especially as political speech and activism increasingly surface in the workplace, forcing employers to navigate the difficult balance between protecting concerted activity under the NLRA and enforcing anti-harassment policies required by equal employment laws.

One way the new administration may try to resolve this tension is through Memoranda of Understanding (MOUs) between agencies and departments. MOUs, also known as inter-agency and intra-agency agreements, are generally unenforceable, non-binding agreements signed between various agencies that clarify agencies’ respective jurisdictions, assign regulatory tasks, and establish ground rules for information-sharing, investigations, training, public outreach, enforcement, and other informal arrangements. While the Biden administration relied heavily on MOUs for other initiatives, it did not do so as much to coordinate between the EEOC and NLRB. The new administration may use MOUs to create less friction between the two agencies. 

State Law Concerns

Most legal concerns related to political speech and activities in the workplace arise under state law, particularly in states like California, New York, and Connecticut, which have explicit protections for employees’ political speech and activities. As a result, federal developments may have limited impact, and employers must carefully navigate state-specific laws regardless of shifts in federal policy or enforcement priorities. 

State law will remain a critical area of focus because a growing number of states have enacted laws banning employers from taking adverse action against employees for refusing to attend or participate in mandatory employer-sponsored meetings, often referred to as “captive audience” meetings, or otherwise requiring them to listen or receive communications regarding employer opinions on “political” or “religious” matters. These laws broadly define “political matters” to include “matters relating to elections for political office, political parties, legislation, regulation, and the decision to join or support any political party or political or labor organization.”³

As political speech remains prevalent in the workplace, these laws may be increasingly implicated when employers attempt to manage discussions or express views on controversial political issues. As states continue to expand these restrictions, legal battles are emerging, with business groups challenging the laws on the grounds that they violate employers’ First Amendment rights and are preempted by the NLRA, setting the stage for future constitutional and preemption disputes.

How Should Employers Handle Political Discussions in the Workplace? 

Because the First Amendment generally applies to government action only, private employers may regulate employees’ communications and speech generally, including by restricting employees’ political speech. Employers may restrict political speech and activities that occur during working hours so long as the restrictions account for federal laws, like the NLRA and Title VII, and state and local laws.

Employers may consider policies restricting speech or conduct related to political topics. Doing so may increase productivity, limit needless tensions in the workplace, and potentially decrease the likelihood of lawsuits. But any rule or policy on workplace politics must account for whether the conduct could be protected concerted activity under the NLRA or implicate state law concerns. Employers should also think about how the restrictions coincide with the EEOC’s enforcement priorities regarding gender, antisemitism, and anti-American discrimination to ensure their policies are not adversely impacting any protected groups, particularly those that have garnered attention from the EEOC. 

Moreover, employers should stay apprised of the EEOC’s enforcement priorities, the NLRB’s approach to protected concerted activity, and state law developments. Finally, employers should always apply policies or rules in a consistent manner.