Political expression runs hot in America these days. How much can employers control speech in the workplace? The problem: There is no one answer.
Employers may be aware that the First Amendment only protects citizens from government restrictions on speech. But you need to be aware of other legal protections that shield employees’ political speech.
“The First Amendment’s limited scope, however, should not give employers a false sense of security about actions that they can take in response to political speech in the office,” stresses attorney Luke Archer of the law firm of Odin Feldman & Pittleman. “Indeed, there are several legal protections that shield employees from adverse employment actions due to political speech.”
Some state and local laws ban employers from interfering with employees’ political speech-oriented activities. These include political donations, signing petitions and running for office.
Some of these protections are far-reaching. Connecticut bars employers from disciplining or discharging employees for exercising their First Amendment rights. In Mississippi it is unlawful for an employer to discharge an employee for reporting an employer’s illegal acts.
At the federal level, the National Labor Relations Act protects the ability of employees to engage in concerted activities concerning pay and working conditions. Employees advocating for a political candidate on the basis that the candidate, if elected, would be able to improve their working conditions could be considered protected speech.
This also is true in regard to laws that protect whistleblower activity, such as reporting regulatory violations by employers. “It is easy to see how such reporting could be shrouded in political language or done for political purposes,” Archer says.