United States: Talk Less, Smile More? Employee Political Speech And Activity

In the current political climate, talking politics has undoubtedly become a national pastime.  Over the past several months, political discussions have been infiltrating the workplace, leaving many employers asking whether they can regulate political speech and activity.

Section 7 of the National Labor Relations Act (NLRA) provides the federal framework governing political speech and activity in the workplace. Under the NLRA, non-supervisory employees must be allowed to participate in political activity relating to labor or working conditions. The National Labor Relations Board (NLRB) has stated that under the NLRA, employees have the right to protest, discuss legislation regarding working conditions, testify before agencies and campaign for a political party if participation in such activity is related to the employee's conditions of employment. Similarly, the NLRA also protects political speech in the workplace if such speech relates to employment conditions. 

In Chipotle Services LLC and Pennsylvania Workers Organizing Committee (Nos. 04-CA-1437314; 04-CA-149551), the NLRB affirmed an administrative law judge's holding that an employer's policy barring the discussion of politics in the workplace violated the NLRA, as such a policy had the potential to chill discussions regarding terms and conditions of employment. Based on the NLRB's broad reading of when political discussions could impact working conditions, the safest position — at least until the Trump administration changes the composition of the NLRB — is for employers to permit employees to engage in political speech and activity in the workplace. However, because of the significant overlap between current political issues and employee protected characteristics, such as gender, national origin and religion, employers must balance employees' right to engage in such activity with other employees' right to work in an atmosphere free from harassment and discrimination. For example, a political discussion regarding the right to gay marriage has the potential to devolve into a discussion involving harassing or discriminatory comments regarding sexual orientation, in violation of the law.

New York state law provides broader protections for employee speech and activity than those provided under federal law.  New York Election Law § 17-150 strictly prohibits an employer from making any "threats, express or implied, intended or calculated to influence the political opinions or actions of his employees." Further, New York Labor Law § 201-d prohibits employers from discriminating against employees because of their legal political or recreational activities when conducted outside the workplace and outside working hours, without utilizing employer equipment or other property. While the statute narrowly defines "political activities" as running for public office, campaigning for a candidate for public office, or participating in fundraising activities for a candidate, political party, or political advocacy group, "recreational activities" is broadly defined as "any lawful, leisure-time activity, for which the employee receives no compensation and which is generally engaged in for recreational purposes." Based on the broad definition of "recreational activities," an employee could potentially argue that politically related activities outside the workplace, such as protesting or politically based social media activity, are protected recreational activities under the New York Labor Law and thus permitted. However, the Labor Law specifically exempts from protection employee political or recreational activity that creates a material conflict of interest related to the employer's trade secrets, proprietary information or "other proprietary or business interest." 

In fact, a case was recently filed in New York Supreme Court raising the issue of whether an employee's politically related social media activity is protected as "recreational activity" under the Labor Law. In Hubbuch v. NYP Holdings, Inc. d/b/a New York Post, a sports reporter was terminated by The New York Post for tweeting "12/7/41. 9/11/01. 1/2017." from his home computer after working hours. In his complaint, the reporter claims that he was unlawfully terminated for engaging in protected recreational activity under New York Labor Law § 201-d. While The New York Post has not yet answered the complaint, it may well contend that the reporter's speech created a material conflict of interest with the newspaper's business interests and thus was not protected under the Labor Law. As such, this case may present an opportunity for the courts to provide more definite guidance regarding the limits of protected political speech in the employment context. 

In order to balance the various protections granted to employee political speech and activity in the workplace with employers' concerns about not letting political tensions erupt in the workplace, employers should consider implementing the following best practices:

  • Treat employees equally regardless of political belief or affiliation. For example, if employees are able to use bulletin boards for politically related announcements, all political views must be allowed.  
  • Remind employees and managers of the company's respect in the workplace, anti-harassment and anti-discrimination policies, and consider providing additional training on such policies. 
  • It may be advisable to discourage supervisors from having political discussions with subordinates in order to minimize potential claims of discrimination and harassment and claims that an employer was attempting to influence the political actions or opinions of its employees.
  • To the extent supervisors are on social media and are "friends" with subordinate employees on social media, they must be cognizant of the political nature of what they post or promote. A mechanism available to avoid potential issues is filtering their own social media posts and/or the posts of their subordinates. Supervisors could also consider not "friending" subordinate employees on social media if they believe that such a step is appropriate. 

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.