Private Sector Employees Have No First Amendment Rights, But Controlling Employee Speech Has Limitations
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In today’s social and political environment, employers are struggling to understand the best way to respond to all sorts of political or quasi-political speech and activity by employees. From employee participation in off-hour rallies and demonstrations, to heated workplace debates and social media posts, employers need to understand employee rights and especially how to handle situations, regardless of where the speech or activity occurs, and regardless of whether the speech or activity is in any way job-related.
Any discussion of political speech and activity must start with examining the impact of the First Amendment’s grant of the right to free speech. The First Amendment provides: “Congress shall make no law . . . prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Perhaps the most common misunderstanding among employees of private companies is their belief that the First Amendment protects their speech on and off duty. That simply is not the case. The First Amendment protects citizens from actions by the government. While the First Amendment may apply in public-sector or government employment, it has no direct application in the private sector, even if the employer is a publicly traded organization.
In a handful of states, such as California, New York, South Carolina and Colorado there are laws that specifically provide some protections for employees not to be disciplined for off-duty political activity/speech. However, even in these states, the law does not give employees carte blanche to say whatever they want in their off time.
The Employer Should:
Political debates in the workplace are becoming more common – and more volatile. As discussed, the law does not give employees free rein to talk about anything they want to in the workplace. However, Employers must tread carefully about restricting speech about matters that relate to shared working conditions, such as diversity policies, unionization, workplace safety or wages. These topics may be protected by the National Labor Relations Act (NLRA). Discipline in that context could trigger an unfair labor practice charge. However, even the NLRA does not leave employees free to disrupt the workplace. Employers may lawfully restrict even speech about wages and working conditions that creates a toxic atmosphere, distracts from productivity, or can be characterized as harassment or bullying.
In addition, many federal laws prohibit retaliation for certain types of speech. Title VII and other anti-discrimination laws forbid retaliation against anyone who opposes unlawful discrimination or participates in an investigation, such as by filing a charge with the U.S. Equal Employment Opportunity Commission. “Opposition” can cover internal complaints or supporting others in doing so. A number of federal laws shield whistle-blowers who raise concerns about everything from pipeline safety to securities fraud. For example, the Occupational Safety and Health Act provides that no employer may “discharge or in any manner discriminate against any employee because such employee has filed any complaint” or testified in a hearing under that statute. These laws definitely place some restrictions on the employer’s ability to discipline employees for speech.
The Employer Should:
Establish a clear policy. Your policies should emphasize respect and civility in all workplace interactions, including political conversations. Hostile or demeaning speech should not be tolerated, regardless of the topic. Perhaps the best approach is to simply ban all discussion of elections, politics and political policies.
Focus on conduct, not content. If you take action, make sure it’s about the behavior and the impact it is having on the workplace, not the opinion expressed. If work isn’t being finished timely, if employees are screaming through the office and disrupting other workers, focus on the disruption.
Be consistent. If you address one type of political conflict but ignore another, you create risk of a discrimination or retaliation claim.
Train managers to intervene. You should teach supervisors to spot the line between a healthy discussion and a volatile one. They should not express political views themselves or allow situations to escalate.
Employers can restrict the wearing of clothing which displays any type of social and/or political message in workspaces or at employer functions or events. However, enforcement of the policy must be uniform regardless of the message. Uneven enforcement of dress codes and workspace policies, for instance allowing purportedly patriotic or humorous slogans (on t-shirts, shirts, hats, desks, etc.) but prohibiting political or social messages – can expose employers to legal risk. If messaging restrictions disproportionately impact one group of employees or one viewpoint, a discrimination claim could follow. Additionally, messages which relate directly to working conditions, such as “Demand higher wages” cannot be banned.
The Employer Should:
Employers are permitted to regulate off duty posts in some circumstances. Remember, if an employee posts a politically-charged social media statement on their personal account that is not about work, but gets public attention, their speech is not protected by the First Amendment. However, some states, including California, New York, and Colorado, do protect lawful off-duty speech, and Minnesota, Connecticut, Louisiana, South Carolina, and Wyoming specifically protect off-duty political activity. These laws may prevent employers from firing or disciplining employees for expressing their personal views unless those views have a clear, material negative impact on the business.
Even without such a state law, as stated above, the employee’s speech could be protected by the federal National Labor Relations Act (NLRA), which protects “concerted activity.” If the social media post relates, even indirectly, to the employee’s wages, hours or other terms and conditions of employment, it may qualify as protected “concerted activity.” During the last administration, the NLRB interpreted broadly what counts as protected speech, and this protection applies to employees in both union and non-union workplaces.
The Employer Should:
Advise and coach your managers not to make any political statements at work. When a manager shares political views with subordinates, the risk of having an employee take legal action multiplies significantly. Even if the statements are not explicitly coercive, the fact that the employer possesses a great degree of power over the employee can create the perception of pressure – especially if employment decisions such as a promotion follow. Employees may feel silenced or retaliated against for not agreeing with their manager’s views. The manager’s speech could open the door to claims of discrimination, retaliation, or hostile work environment, especially if the political commentary touches on race, religion, sex, sexual orientation, gender identity, or national origin. Managers are held to a higher standard because their words are presumed to carry the weight of the company.
The Employer Should:
CONCLUSION
The rules around political speech at work are becoming increasingly complex. While private employers retain broad discretion to manage workplace conduct, and their employees have no First Amendment rights, there are both state laws and the NLRA that may limit this discretion. Taking a proactive approach helps prevent not only legal issues, but also the perception of bias or favoritism rooted in personal beliefs. Thus, disruption of your business can be kept to a minimum.
If you have any questions, feel free to contact our attorneys, Jay Rollins or Debra Schwartz by calling 404.844.4130.
