Let’s Talk Politics - Suppression of Speech in the Workplace
Date: October 30, 2020
A common rejoinder to any effort to limit political speech is “Freedom of Speech.” While it is true that the First Amendment to the U.S. Constitution protects persons from governmental suppression of the right of free speech and expression, those guarantees do not apply to private enterprises and businesses. As a result, private employers have more leeway to address offensive, disruptive or inflammatory speech than do governmental organizations. Still, there may be limits imposed by applicable state or local law, which need to be considered.
The District of Columbia, for example, protects employees from discrimination on the basis of their political beliefs or political affiliation. An uneven application of corporate policy against political speech an employer disfavors could readily invite a complaint to the Office of Human Rights, or potential civil litigation. Moreover, some states have laws, which prohibit or severely limit an employer’s ability to take action against an employee based on activity that occurs outside of work. While an employer may be in a position to take action where the outside conduct has a direct impact on its business, the variation in applicable law needs to be considered in each case.
Likewise, where the political activity may involve conduct that relates to a protected classification, such as race, gender, sexual identity, or national origin, employers should be wary of potentially discriminatory application of work rules. Enforcing a policy against an employee wearing a BLM mask, after a customer complaint, while at the same time condoning an employee with a MAGA shirt is unlikely to pass scrutiny of the EEOC or local human rights commission. Strict application of uniforms or dress codes in all cases is, instead, a more equal response.
The National Labor Relations Act also provides some protection to employees who raise or seek to discuss concerns relating to working conditions and pay in the workplace. In this context, drawing a comparison between company culture and #MeToo or advocacy for more fair pay practices may well fall within the ambit of protected concerted activity under the NLRA. Generally, activities during non-working time, such as breaks or mealtimes, is permissible and may not be unreasonably limited by the employer. Activity while on duty, however, may usually be restricted. Likewise, employees may support political activities in furtherance of work related concerns while off duty, though they may be subject to discipline if they call off work to do so. The key to addressing all such conduct is having lawful, and neutrally applied work rules. Speech that is profane, defamatory or malicious is generally not protected.
The best response to each of these scenarios is to have lawful, non-discriminatory policies in place, which restrict political activity and expression in the workplace. This may include limitations on political insignia, buttons, hats and shirts, provided such limits comply with applicable NLRA law. Firm social media policies, which make clear the scope of acceptable on-line activity, as it may relate to or impact the employer, is also advisable. Racially offensive comments by an employee online should be viewed through the prism of the company’s EEO policies, company values and the potential impact such conduct may have on other employees and the company’s business reputation. It hardly needs to be said that an errant posting online may bring a torrent of unwelcome attention from the internet police, to the point that it becomes a distraction to regular business operations. Reminding employees of company policies as they relate to discrimination and harassment, and emphasizing that public comments in online forums should be guided by the same principles.
Establishing, communicating, and fairly enforcing company policies in a non-discriminatory, neutral manner will be an employer’s best protection against unacceptable and disruptive conduct, as well as against claims that, in enforcing such policies, the employer has unfairly trod on employee’s rights or unlawfully discriminated against them.
As problems created by third parties, such as the corporate email blast, a distinct set of issues come into play. This would include the scope of authorized use permitted by the vendor of the information utilized under the contract for services, among other concerns. An even handed, neutral tone, respectful of the employees’ privacy concerns is appropriate, as would be follow up to the vendor to voice any concerns.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.