Sightings of presidential candidates in NH were more frequent than Santa Claus this past holiday season. That combined with increased media coverage on the primary and the impeachment hearings in Washington may have lead to some electrified and polarizing political discussions at work that detracted from teamwork and collegiality. Employers may wonder whether they can lawfully discharge or discipline an employee for disruptive conduct arising out of political speech or activities. The answer is “it depends.”
Contrary to popular belief, there is no right to free speech in private workplaces under the U.S. Constitution. To paraphrase former Supreme Court Chief Justice Oliver Wendell Holmes Jr., an employee may have a constitutional right to talk politics, but he has no constitutional right to be employed.
Political party affiliation and political speech generally are not protected in the workplace like gender, race, color, age, national origin, religion, disability, sexual orientation and gender identity. There are still, however, some protections for free speech. The actions employers can take depend on, for example, whether the employer is a public or private employer, the state in which the employee works and whether the workplace is union or non-union. Other relevant considerations include company policies and practices, state or local laws and the National Labor Relations Act (NLRA).
Many states have laws protecting employees from discipline, termination or other penalties based on their exercise of federal or state constitutional free speech rights, but these protections vary by state. New Hampshire’s constitution includes free speech protections. In addition, NH had two U.S. Supreme Court cases dealing with free speech in the early 1940s, but each allowed reasonable governmental restrictions on the time, place and manner of speech. Neither the NH constitution or these cases addressed political speech in the workplace.
Political speech can potentially tap into or conflict with many workplace policies, such as rules respecting no solicitation/distribution, access rules, appearance standards, policies on social media and policies on use of company computers and equipment. Also relevant are prohibitions against discrimination and harassment, rules on civility and disparagement; and concerns respecting whistleblowing and retaliation.
Protections for Political Speech
There are different protections for speech in the workplace depending if the employer is in the private or public sector.
Public employers use a balancing test to determine whether an employee’s speech is protected. This test balances the interests of the employee, as a citizen, and the interest of the state in promoting the efficiency of the public services it performs through its employees. Relevant considerations for public employers include whether the speech relates to a matter of public concern, the effect of the speech on the public and on the public entity, and whether the speech was related to the employee’s official duties. The First Amendment prevents the government from making laws “abridging the freedom of speech,” but state governments can still limit speech in certain forums (such as time, place and manner) or based on whether it is especially obscene or aggressive in nature.
Private sector employers are not governed by any First Amendment “free speech” right to political expression in the private workplace. Again, some states and local governments do have laws protecting employees from adverse employment actions because of their political speech or activities outside of the workplace.
The NLRA does not specifically protect political speech, but speech and related action are protected if they are both concerted (such as a group or individual expressing concerns on behalf of similarly situated employees) and about a work-related issue. The scope of these protections varies among states, so consult with local counsel before taking action.
Political speech in the workplace may also involve issues related to anti-discrimination under Title VII and related state anti-discrimination statutes.
To avoid problems, employers should establish and communicate clear expectations as to the organization’s policy on political expression. They should also restrict access to bulletin boards or e-mail systems for political purposes; consistently enforce dress code and attendance policies; remind employees of policies regulating internet and email usage in the workplace (but be mindful of the NLRA protections); train supervisors and managers on policies regarding political activities that may include steps to take if they observe inappropriate conduct; avoid overreacting to short harmless discussions among employees; and use progressive discipline steps, as appropriate, to enforce the policy.
While discussions about politics and other social issues at work may be enlightening; if the topic is controversial or divisive, remind employees what our mothers told us, “If you can’t say something nice, perhaps you shouldn’t say anything at all.”
Attorney Jim Reidy is a partner at Sheehan Phinney, where he is the chair of the firm’s labor and employment law practice group. For more information, visit sheehan.com.