During this time when we are seeing protests related to Black Lives Matter and COVID-19, and as political campaigns start to heat up, it can be expected that employers will start to hear more discussion of a political nature in the workplace. Employees may argue for a particular political viewpoint or even try to campaign in the workplace. It behooves an employer to have an understanding of how the law treats political speech in the workplace. The following are some points regarding how the law treats political speech in the workplace:
Freedom of Speech: The right to free speech is foundational in the United States. But does this right extend to the private workplace? The answer is a resounding no. Aside from some narrowly tailored exceptions (such as whistleblowing and the right to discuss conditions of employment granted under the National Labor Relations Act), an employee of a private employer does not have the right to say whatever the employee wants to say. This means that a private employer has the right to limit or even prohibit political speech in the workplace. This includes all types of speech – from conversations to emails, from political buttons and shirts to posters.
Have a Policy: Because an employer can limit or prohibit political speech in the workplace, it follows that an employer can discipline an employee if the employee engages in such speech. It is, of course, a good idea to have a policy clearly setting forth the employer’s rules regarding political speech and then discipline according to the policy. Be sure to enforce the policy even-handedly.
Non-Solicitation Policies: An employer’s non-solicitation policy is also a means by which an employer can limit or prohibit campaigning in the workplace.
Employers Pushing Their Views on Employees: Employers should be careful about trying to persuade employees to their way of thinking on political issues. Most states have laws that restrict this. For example, in Oregon, the Worker Freedom Act prohibits employers from forcing employees to attend political meetings and distribute political communications. In Washington, employers cannot interfere with an employee’s efforts to support or oppose an initiative; discriminate against employees because of their support or opposition of a candidate, party or other political activity; or use payroll contributions or salary increases for the purpose of funding political activities or candidates.
Following these precepts should help employers stay out of trouble when it comes to political speech in the workplace.
This update is prepared for the general information of our clients and friends. It should not be regarded as legal advice. If you have questions about the issues raised here, please contact any of the attorneys in our Labor & Employment Practice Group, or the attorney with whom you normally consult.