Terminating Workers In The Private Sector For Their Political Affiliations And Activities

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As this year's political campaigns heat up and elections draw closer, heated discussions in hallways, postings on social media platforms, and expressing support for candidates...
United States Employment and HR
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As this year's political campaigns heat up and elections draw closer, heated discussions in hallways, postings on social media platforms, and expressing support for candidates tend to become all too common in the workplace. When these activities begin to affect workplace productivity and morale, private employers may wonder if they can fire employees based on their political affiliation and activities. In many cases, they can, since there is no federal law that prohibits discrimination based on political affiliation or beliefs.

Unlike government workers, who have protections under the First Amendment for their political behavior outside the workplace, private workers do not enjoy any legal protections of their political speech and activities. The only exception for employees of private companies is under selected state laws and local ordinances, which may offer protection, at least to varying degrees.

For instance, a few states prohibit political affiliation discrimination by private companies, including California, Louisiana, Missouri, New Mexico, South Carolina, Utah, and Washington D.C. Significantly more states ban discrimination based on political activities, but these laws often provide very limited protections that apply only in certain situations. For example, the laws in Georgia and Ohio only provide protection for employees if an employer tries to intimidate them into voting a certain way or not voting at all. Likewise, the New York law very narrowly defines political activity, so many actions by employees may not fall within the protections of the law.

In other situations, an employee's actions may be protected as political activity, but it also may violate other employer policies or rules if it occurs in the workplace. For instance, if political activity interferes with employee performance, violates prohibitions on personal or mass email messages, or breaches rules on employee attire at work, the employee may face discipline for other reasons.

On the federal level, employers may not prevent employees from engaging in concerted activities to impact legislation, such as minimum wage increase or other similar policies. Doing so may cause employers to run afoul of the National Labor Relations Act. Employers also must take care not to take any disciplinary action that could be construed as violating Title VII of the Civil Rights Act of 1964, which prevent discrimination based on various protected classes, including race, sex, gender, religion, or national origin.

Whether state or local laws impact an employer's ability to terminate workers based on political affiliation or activity or not, employers should consider the other consequences of doing so. Some employees may welcome employer action to rid the workplace of a highly offensive person. However, other employees may believe that employers should stay out of employees' personal business and allow them to have their own political opinions. Therefore, taking disciplinary action in this situation could either boost or lower employee morale in general, depending on the circumstances.

HBL has experience in all areas of benefits and employment law, offering a comprehensive solution to all your business benefits and HR/employment needs. We help ensure you are in compliance with the complex requirements of ERISA and the IRS code, as well as those laws that impact you and your employees. Together, we reduce your exposure to potential legal or financial penalties.

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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