Considering the highly contentious and unusually colorful nature of the 2016 presidential election, it's likely that political discussions in the workplace occupied an unprecedented number of man-hours. It's equally likely that political gossip and arguments among coworkers can rightly be blamed for some lost productivity during the election and beyond.
Some employers have taken steps to discourage these kinds of discussions—not necessarily because such talk wastes company time, but because the ideas being exchanged may offend the employer. Employers and supervisors who champion Candidate A may not want to run a workplace full of employees who support Candidate B.
Is it legal for employers to ban their workers from discussing politics while on the clock? Can employers force employees to remove campaign posters and similar political materials from the workplace? As usual, the answer isn't as clear-cut as many may believe.
The First Amendment and the Workplace
The First Amendment safeguards the right to free speech—or does it? In actuality, the scope of the First Amendment is more limited than you might realize. The text of the First Amendment says that “Congress shall make no law… abridging the freedom of speech.” Nothing is mentioned, however, about whether a private employer can stop such speech, so the First Amendment may not apply to speech at non-government workplaces.
Is Political Affiliation a Protected Class?
But, you might argue, doesn't the law recognize protected classes, like members of religious groups? Doesn't political orientation get the same consideration? Generally speaking, the answer is no. Although people cannot legally be discriminated against in the workplace on the basis of race, sex, religion, age, gender, disability, national origin, pregnancy, and certain other characteristics, political orientation is not protected in this manner.
There are a few states where affiliation with a political entity is protected by law—e.g., California and New York. Georgia, however, does not have any such law.
Although the law grants employers wide leeway to clamp down on political speech at the office, employers could still run afoul of the law if not careful. Although political speech is not inherently protected, political speech may touch on sensitive issues that are protected by anti-discrimination laws.
We can best explain this using a fictional example. Let's say Employee X, who is Catholic, encourages coworkers to vote for Candidate A, citing Candidate A's support for the Catholic Church as a reason to support him or her. The owner of the business, who strongly dislikes Candidate A's party, takes offense at Employee X's endorsement, and decides to terminate Employee X.
As we have noted, the law does not protect political speech—but it does forbid employers from firing employees on the basis of religious affiliation. In the above example, it might be possible to frame the issue as one of religious discrimination.
Another consideration is the National Labor Relations Act (NLRA), specifically Sections 7 & 8(a)(1), which protect the right of two or more employees to engage in “concerted activity” for the purpose of discussing union and some other work-related issues. An employer may violate the NLRA if it interferes with workplace discussions pertaining to unions or union-related matters, such as pro-union political candidates.
Unevenly applied punishments may also be problematic. An employee who is fired for supporting a certain candidate may be able to bolster an underlying claim of discrimination if it can be shown that other employees who openly backed the candidate were not terminated.
Laws relating to political speech at work can be confusing—that's why you need knowledgeable legal counsel in your corner to help you determine whether you have a valid case against an employer. Contact Barrett & Farahany, LLP, today for a FREE consultation.