United States: Cooling Hot Political Buttons

During every political campaign, I am reminded of the notion that if we speak about our co-workers or subordinates in the manner in which the American voter speaks about political candidates, we should expect some remediation by our superiors or human resources. For example, if we question the legitimacy of an employee's birth certificate, criticize an employee's middle name because it is the same as the first name of a known terrorist, or question whether we are ready for a female boss or whether an applicant for employment is "too old," we might notice an increase in administrative charges or lawsuits.

Love him or hate him, Donald Trump's election rhetoric, both in the news and in social media, has us wondering what he will say next. In the work world, human resources professionals and employment lawyers alike spend countless hours developing appropriate harassment/ discrimination policies and training their workforces to prevent harassment in the workplace on the basis of any protected characteristic.

What would happen if Trump was an employee and used his very own rhetoric at work? Referring to an employee as a "piece of a – -" or to persons of certain nationalities as "rapists and criminals," imitating disabled persons, or comparing his fingers to ... well, something else ... would send him into his very own "Trump Boardroom." Despite its apparent presence at the political podium, this conduct has no place at work, and proper training and corrective remedial action are key to avoiding discrimination and harassment claims.

But what if employees speak about Trump's polarizing policies at work? Can you have a rule that outlaws all political speech in the workplace regardless of the speech? Although controversial, chilling political speech, even in the workplace, could have certain First Amendment consequences. Distilled to its very essence, the First Amendment limits Congress' and states' rights to pass laws abridging the freedom of speech. This right has been extended to public-sector employees. Therefore, federal, state, or local government employees may not suffer any retaliation for speaking out about matters of public concern.

As a private-sector employer, you might believe that the First Amendment has no relevance to your workplace. You might believe that you can fire Trump or Hillary supporters just because they are Trump or Hillary supporters, even if they support their preferred candidate during their free time. You might believe that you can fire employees for discussing their political beliefs at work. You might be wrong.

Many states prohibit private-sector employers from retaliating against employees for legal off-duty activities, which includes political activity. Some states, like Connecticut, codified the First Amendment in a statute and made the First Amendment applicable to all private-sector employees. Therefore, in Connecticut, employees cannot suffer adverse action for engaging in rights protected by the First Amendment, including speaking out on matters of public concern in the workplace.

Finally, in the unionized setting, where collective bargaining agreements contain "just cause" provisions, disciplining employees for speaking out about their favorite political candidates or about their political views would not rise to the level of "just cause" under the "Seven Tests of Just Cause" or any test of just cause.

Despite certain First Amendment rights, employers should still control harassing speech, as political correctness at the workplace still trumps political talk.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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