Workers Often Surprised That Employers Can Restrict Political Expression

Littler Mendelson Offers Tips on Preventing Political-Season Conflicts

Washington, DC (September 28, 2004) -- As the 2004 presidential campaign heats up, so may tempers on the job. Talking politics at the office already has caused well-publicized incidents, including an Alabama woman claiming she was fired for refusing to remove a campaign bumper sticker.

Many people wrongly assume the U.S. Constitution and the Bill of Rights entitle them to express their political views whenever and wherever they wish, according to attorneys with Littler Mendelson, the nation's largest employment and labor law firm.

In fact, workers at private-sector companies who are employed at will (not covered by a contract or labor agreement that says otherwise) generally can be terminated for their political beliefs as long as their dismissal complies with employment statutes and does not run afoul of other state-law guarantees.

The Bill of Rights, including the First Amendment's protections of free speech, does not apply directly to private-sector entities,” said Peter A. Susser, a partner in Littler Mendelson's Washington D.C. office. “Tension and conflict often result when employees lack direction and are confused about what they can and cannot say and do.

Employers generally have the right and responsibility to ensure that work environments are safe, are free of hostility and conducive to productivity. That includes protecting their employees from being badgered or pressured by overzealous political advocates. In many cases, employers have the legal right to limit or prohibit political expression during work hours. Even in states with laws protecting political expression, employers still retain broad powers to restrict workday activities to business pursuits.

Susser said private employers can:

  1. Limit employee political activities that have an impact on the workplace by implementing rules prohibiting various activities, like political campaigning during business hours.
  2. Enforce general, uniform rules about employees' personal appearance or work-area decor – making sure all employees are treated equally. For example, retail workers who come into contact with customers can be prohibited from wearing political campaign tee shirts or buttons.
  3. Adopt and enforce “no-solicitation/no-distribution” rules, which limit soliciting support for and distributing literature about various types of non-work activities, ensuring that they are applied to political campaigning. The rules should be applied in a uniform and evenhanded way, but should not be so overbroad as to prohibit protected activities, such as the right of workers to discuss union-related issues on non-work time in non-work areas. Susser advises that employers seek legal counsel to draw up appropriate work rules.
  4. Adopt and enforce policies dealing with workplace technology, including the restriction of e-mail to work-related activities. In this way, employers can declare political campaigning using company e-mail to be off limits.

“Employers are allowed to adopt these practices in the interest of their company's efficiency and to keep employees focused on the job,” Susser said. “It's probably prudent to keep politics out of the workplace during business hours.” Littler Mendelson has advised a number of private-sector employers on the development of clear policies on political activity and expression; where adopted, such restrictions should be communicated to all employees.

The rules for public-sector workplaces are different. Government employees do have certain rights to political expression on the job because the U.S. Constitution and Bill of Rights relate to actions by the government, including those taken in the role of “employer.” Even in such settings, however, there are statutes and regulations that may limit political activities of public employees, both on the job and – in some cases – off-the-job.

About Littler Mendelson

Littler Mendelson, with more than 400 attorneys in 28 offices nationwide, is the largest law firm in the United States practicing exclusively in employment, employee benefit and labor law, representing management. The firm's client base ranges from Fortune 500 companies to small-business owners. Established in 1942, the firm has litigated, mediated and negotiated some of the most influential cases and labor contracts in the nation's history. Its affiliated global migration practice, Littler Global , provides support to major companies in moving employees around the world. For more information, visit