Traditionally, it has been taboo to discuss religion, politics, or divisive matters of public concern in the workplace. Most employers want the worksite to be about work and want to avoid controversial and potentially offensive discourse. However, in the current political climate, amid a global health pandemic, and the movement for social justice gaining unprecedented momentum and widespread support, many employees have taken to the streets — or their social media platforms — in protest. Employers are challenged to be sensitive and accepting of varying opinions and beliefs while ensuring that conversations in cubicles and at lunch tables do not interrupt productivity or subject companies to negative publicity or, worse, liability. We all know that the details matter, so we can’t give you the magic words to fix this situation. However, here is some high-level guidance on what speech you can regulate in the workplace and what and when employees can freely express their opinions.
What Speech Is Protected?
If you are a public employer, your employees have First Amendment rights. For everyone else, the National Labor Relations Act (NLRA) protects certain concerted activity by employees related to the terms and conditions of employment. The NLRA protects both union and nonunion employees who engage in concerted activity.
Section 7 of the NLRA provides that employees have the right to engage in concerted activities for collective bargaining or other mutual aid or protection. The NLRA also protects employee speech and conduct when it concerns the terms and conditions of employment. While activity or speech that is purely political without any correlation to employment-related issues is likely not protected under the NLRA, when employees seek to improve their lot as employees through channels outside the immediate employee-employer relationship, such actions or speech may be protected. For example, an employee who compares the type of “Me Too” sexual harassment covered in the media with his or her own work culture or who advocates for pay equity through political activity may be engaging in concerted protected activity.
The National Labor Relations Board (NLRB) will often look to whether there is a direct nexus between the specific issue that is the subject of the advocacy and a specifically identified employment concern of the participating employee.
With regard to the growing public consciousness and conversations about race and justice in our nation in reaction to the killings of George Floyd in Minnesota, Ahmaud Arbery in Georgia, and Breonna Taylor in Kentucky, you will likely have employees who engage in political activity and speech based on their opinions, beliefs, and emotions about these events. If your employees’ political activity or speech has a nexus to the terms and conditions of their employment and does not create a hostile work environment based on a protected class, the activity or speech may be protected under federal law. Many states also have their own laws that protect lawful off-duty conduct or political activity, so long as it does not substantially interfere with the employee’s job performance. Thus, in addition to the NLRA, you must check for state or local laws that might protect employee conduct related to political speech, activity, protest, or demonstrations, on or off duty. Likewise, you may have a duty to stop certain activity or speech if it creates a hostile work environment or displays animus toward other employees in a protected class.
What Are Employer Rights to Regulate Political Speech During On-Duty and Off-Duty Hours?
Nevertheless, you have the right to preserve continued operations and enforce reasonable policies regardless of whether an employee’s political speech or conduct is protected or not. In evaluating employee conduct at work, you should ask:
- Does the conduct violate a company policy or a workplace rule?
- Is the conduct consistent with reasonable and legitimate expectations for the workplace?
- Does the conduct implicate protected activity?
For example, employees may discuss political issues relating to working conditions and pay during regular work hours, but the discussions must take place during non-work time, such as breaks or mealtimes. Similarly, employees may participate in a protest in support of political initiatives when off duty, but you can administer discipline if they call out sick to do so. You can also prohibit protected political speech that is profane, defamatory, or malicious against the company or its managers.
If you are considering disciplining employees for engaging in political speech, make sure to apply your policy objectively and consistently. Be sure your decisions are business related and do not have a disparate impact based on a protected status.
Thus, in the context of participating in political rallies and demonstrations, if your employee misses work to attend, you can enforce your attendance policy. If the rally is not during the employee’s scheduled work time, did the employee’s participation impact your business? If it did, you may want to address it, but you may not. If you want to address it, first check for any state or local statutes that might apply. Disciplining an employee for engaging in lawful off-duty conduct (such as supporting a political cause) could backfire, causing unrest in your workforce or negative publicity in your community. And for unionized labor forces, some labor unions are politically involved, and applicable collective bargaining agreements may prohibit discrimination against union workers because of their political activity.
When your employees engage in political speech, take a deep breath before you take action. You have the discretion to enforce your policies and may discipline employees who are not performing their jobs because they are focusing on political activities during work. However, if participation in politics or public advocacy concerns the workplace or employees’ interests as employees, it may be protected under federal, state, or local laws.