With the 2024 election quickly approaching, employers should expect an increase in political conversation and activity in the workplace. It is essential during political seasons for both employers and employees to understand how to navigate political speech and activity to maintain positive working relationships and overall productivity.
Generally, public-sector employers have little flexibility to govern the discussion of politics in the workplace, as the First Amendment protects political speech unless it causes workplace disruption. However, the First Amendment only applies to government action and, therefore, does not apply to private employers. Private-sector employers generally have the right to regulate political speech in the workplace through their policies, although those rights are not without limits.
The Right to Regulate Speech – Public Sector Employers
The First Amendment reads, "Congress shall make no law...abridging the freedom of speech." The amendment grants a constitutional right for public employees to express political thoughts in the workplace. With that being said, public employees must stay within the constitutional bounds of the First Amendment when utilizing those rights. The political speech of a public employee is protected when the employee speaks as a private citizen about a matter of public concern, and the speech does not otherwise interfere with the employee's job duties.
If the employee is speaking as a private citizen, not as part of their job duties, and speaking on a matter of public concern, courts will then balance the employee's interest of his or her own speech against the employer's interest in regulating the speech to determine whether the employee's speech is protected under the First Amendment. Public sector employers are permitted to protect their interest in promoting an efficient workplace, but should ensure their practices to not infringe on the First Amendment rights of their employees.
The Right to Regulate Speech – Private Sector Employers
The First Amendment only applies to "state action," and does not generally apply to private employees, who have more control over the political speech that is permitted within the workplace. While private employers are allowed to restrict the speech of their employees and enact disciplinary measures against employers for violations of speech that violate their employment policies against disclosing confidential information, against discrimination and harassment, and others, such policies must comply with the National Labor Relations Act ("NLRA").
Notably, there is no federal law that specifically prohibits discrimination based on political affiliation or activity. However, discriminatory practices based on political affiliation may lead an employee to claim retaliation, harassment, or discrimination on other grounds through the Equal Employment Opportunity Commission ("EEOC"). For example, a political discussion may quickly become grounds for a harassment or discrimination claim if it targets a protected class. In July of 2024, the Ninth Circuit ruled employers may be held liable for hostile work environment claims based on harassing content posted by an employee. Okonowsky v. Garland, 109 F.4th 1166 (9th Cir. 2024). Okonowsky involved a prison corrections lieutenant's private Instagram account where the lieutenant posted "overtly sexist, racist, anti-Semitic, homophobic, and transphobic memes." The employer argued that the posts originated outside of the workplace and, therefore, could not form the basis of a hostile work environment claim. The Ninth Circuit disagreed and pointed out that coworkers could view, comment on, and otherwise interact with the offensive posts inside and outside the workplace. In rejecting the employer's attempted distinction between workplace and social media conduct, the Ninth Circuit in doing so noted "in light of the ubiquity of social media and the ready use of it to harass and bully both inside and outside of the physical workplace." Okonowsky highlights the risk that employees' offsite use of social media could contribute to a hostile work environment if the content is harassing and affects the working environment.
Okonosky also underscores the standard for hostile work environment claims, which takes in account the totality of circumstances, meaning discriminatory social media posts need not target a specific person to subject an employer to liability. Employers should be aware that they may be held liable for employees' conduct occurring in a non-work related settings (including social media).
Additionally, the NLRA applies to applies to all non-supervisory employees, both unionized and non-unionized, and grants employees the right to form or join unions, engage in protected, concerted activities to address or improve working conditions, or refrain from engaging in concerted activities. Thus, employers are not permitted to infringe on the rights granted to employees under the NLRA; private employers should be wary when restricting political speech in the workplace.
In some cases, concerted activities may involve political speech and, therefore, may be protected under the NLRA. For example, in February of 2024, in the matter of Home Depot USA, Inc. and Antonio Morales, Jr. Case 18-CA-273786, the National Labor Relations Board ("NLRB"), the agency that enforces the NLRA, found that writing "BLM", the acronym for "Black Lives Matter", on a uniform is protected concerted activity under the NLRA. The NLRA protects the legal right of employees to engage in "concerted activities" for the purpose of "mutual aid or protection" — whether or not they are represented by a union. The NLRB noted that the employee's failure to remove the BLM reference was (1) "concerted' because it was a "logical outgrowth" of prior employee protects regarding discrimination; (2) there is close nexus between the political expression and employment; and (3) was for the "mutual aid or protection" because it involves terms and conditions of employment under the employer's control.
Considerations for Employers –
- Maintain Updated Policies. Employers should ensure their policies are carefully crafted to account for federal and state law. Policies should be updated frequently and include clear acceptable standards for employee use of social media.
- Apply Policies Consistently. Policies should be applied consistently to all employees to minimize the possibility of discrimination, harassment, and/or retaliation claims.
- Provide Educational Resources and Training. Employers should foster a culture of respect in the workplace through trainings and other educational resources.
- Communicate Policies Effectively. Employers should ensure all policies related to political speech, including social media policies, are communicated effectively.
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.
