It’s election season! Regulation of political speech in the workplace

With less than three months to go until the general election, politics seems to be a hot topic of discussion these days! However, today’s political climate is more divisive than ever, and there are many reasons why you might not want these discussions in the workplace. You may also wonder if you can prohibit employees from wearing or displaying election-related posters, pins, hats, shirts, and other political clothing, paraphernalia, or paraphernalia.

Although private, non-governmental employers generally have the right to regulate the speech, dress and conduct of their employees in the workplace, this right is not without limit. In fact, under certain circumstances, employees have the right to engage in certain types of speech while on the job. Therefore, employers must implement their workplace policies and procedures carefully to ensure that they do not inadvertently infringe on the protected rights of their employees.

What rights do employees have?

While the First Amendment guarantees citizens the protection of free speech against government intrusion, this right does not apply to private workplaces. So, unless you’re a government employer, your employees don’t have a federal constitutional right to free speech while on the job.

However, despite the lack of federal constitutional protection, many states have enacted laws protecting the political expression of private sector employees in the workplace. For example, in Colorado, employers cannot threaten to fire employees because of their affiliation or affiliation with a political party; in North Carolina, it is illegal for an employer to take adverse action against an employee for any vote he has or may intend to cast; and in Connecticut employers are prohibited from taking adverse actions against employees for exercising First Amendment free speech rights, with certain limitations.

In addition to these state and local laws, the National Labor Relations Act (NLRA) generally protects an employee’s right to engage in concerted activity, such as speech at work, for the purpose of attempting to improve terms and employment conditions. So even though the NLRA doesn’t specifically protect political speech, if that discussion involved working conditions or wages, for example, even if not explicitly, then it could be protected.

Best practices for employers

First, even though political affiliation is not a federally protected category, political discussion and other activities can easily cross over into other topics such as race, gender, and religion.

Employers must therefore ensure that any policy is developed and implemented in a neutral and consistent manner. This means that if you choose to allow employees to express support for a particular political cause or party, you do not restrict other employees from expressing support for an opposing cause or party. Similarly, before disciplining an employee, employers should ensure that they are not inadvertently showing preferential treatment for a protected characteristic. And if you plan to implement a policy that prohibits political messages in the workplace (such as a dress code policy that specifically prohibits employees from wearing clothing or accessories with messages, slogans, logos, or advertisements), then the policy would should be limited. to non-workplace political messages to ensure you do not conflict with the NLRA.

Furthermore, while employers probably can’t prevent political conversations from happening entirely, they can (and should) have policies on intimidation, unlawful harassment, and hate speech that set expectations about what is and isn’t appropriate behavior at work.

If you have questions or need assistance developing your workplace speech policies or practices, please contact your Akerman labor and employment attorney.

Reprinted with permission from Akerman and Emily C. Ayvazian.

This information is intended to inform clients and friends of the firm about legal developments, including recent decisions of various courts and administrative bodies. Nothing in this practice update should be construed as legal advice or a legal opinion, and readers should not act on the information contained in this practice update without seeking the advice of legal counsel. Previous results do not guarantee a similar result.

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