Political Speech in the Workplace

You Asked.BlogQ: Our management is concerned about the acrimony surrounding this election. How can we manage our employees’ support of their candidates without breaking any laws?

A: While some elections happen more frequently, nothing gets Americans’ blood boiling like a good, old-fashioned presidential election every four years. As far as those go, the current election is the most contentious most of us have ever seen.

What should HR do when political activity spills over into the workplace? Even seasoned HR employees can become intimidated when an employee says, “You’re infringing on my First Amendment rights!”

First things first: Do your employees actually have a First Amendment right to free speech in the workplace? As with everything legal, the answer is “yes,” and “no.”

Public-sector or “government” employers have a dual role: (1) to effectively operate institutions providing public services, and (2) to operate as entities governed by the First Amendment. Therefore, when a public-sector employee criticizes his or her employer, the task is to determine whether that employee’s words are protected political speech or an unprotected act of insubordination.

Public-sector employees terminated for political speech in the workplace have to prove two things to win in court: They must show their speech addresses a matter of public concern, and they must show their free-speech interests outweigh their employer’s efficiency interests. Federal courts have reached wildly different conclusions in such cases, so if you are a public employer faced with this situation, call MSEC, and we’ll help you.

Private-sector employers have less to worry about and may prohibit employees from engaging in political activity during the work day. They may also prohibit the use of company equipment, such as printers and telephones, for political purposes.

Note that you cannot interfere with employees expressing their political views outside of the workplace. Also, some states and municipalities have laws that specifically address employee political activity and prevent discrimination against employees for expressing their political views.

The National Labor Relations Act complicates things further. According to the report released by the General Counsel of the National Labor Relations Board in March 2015, a work rule prohibiting employees from engaging in protected concerted activity or one that can be reasonably construed as attempting to prohibit protected concerted activity may be found unlawful. With respect to political activity, an employer may not discipline employees who participate in political advocacy and conduct aimed at making the employer aware of issues related to wages, hours, or working conditions or that has a direct relationship to an employee’s working conditions.

All of this sounds pretty complicated, and in worst-case situations, it can be. However, most employers will be able to achieve their goals simply by prohibiting campaigning during work hours, including posters and other political collateral, and prohibiting the use of office equipment for political purposes.

These materials are general in nature not to be construed as the rendering of legal or management advice. Send your questions to cgraves@msec.org. Please tell us if you would prefer your identity not be mentioned in our answer.