Politics In The Workplace: What Employers Need To Know

As the 2024 election approaches, protests continue across the country, and employees increasingly engage in discourse on important national and international political topics, employers can expect that political speech and activity will occur in the workplace. Littler's 2024 annual Employer Survey Report confirmed that 87% of employers expressed concern with managing divisive political and social beliefs among their employees leading up to the election.

Because political discussions often involve issues with personal significance to employees, even a small disagreement can erupt into a heated argument. This can negatively impact productivity, employee morale, and working relationships as employees discuss or even advocate their political opinions. How an employer deals with politics in the workplace implicates an organization's brand, values, and social justice stance. Myriad labor and employment law issues also arise with politics in the workplace, including under anti-discrimination laws, the National Labor Relations Act, state mandatory employer-sponsored meeting bans, and voting leave laws. As a result, employers should be aware of employees' rights, and limits on those rights, related to political speech and activities in the workplace, and be prepared to act proactively to prevent issues before they arise.

Employers' Rights to Restrict Politics in the Workplace

The First Amendment applies only to government action, and thus does not limit the rights of private employers to regulate employees' communications. It does not provide a constitutional right for workers to express political thoughts or opinions in a private workplace. In other words, there is no federal constitutionally protected right of political free speech in the workplaces of private employers.

With few exceptions, there is limited legal protection for political activities in the workplace. Private employers generally may refuse to hire and even fire "at will" employees because of their political views. In other words, "political discrimination" often is not unlawful under federal law. Several state and local jurisdictions, however, provide greater employee protections. For example, the District of Columbia prohibits employers from discriminating against an employee's actual or perceived "political affiliation."

At least 11 states have laws that prohibit employers from disciplining, or otherwise restricting, employees from expressing their political affiliations or views or being affiliated with a political party.¹ In fact, some state laws protect speech that goes past purely political matters, extending protection to advocacy for social justice or other issues. California courts have ruled that advocacy for certain rights or for disabled individuals constitutes "political speech" protected by statute.² Similarly, Connecticut law extends First Amendment protection to speech by employers of private companies, prohibiting such employers from taking adverse action against an employee for engaging in speech that would be protected against government interference by the state or federal constitution.³ The Connecticut law expressly does not, however, protect activities that would substantially or materially interfere with the employee's job performance or the working relationship between the employee and employer.

Employers' Rights Regarding Politics in the Workplace

Employers themselves generally have the right to engage in political activity in the workplace. For instance, employers can communicate with their employees about a company's support for or opposition to legislation or regulations. Similarly, employers are generally permitted to inform their employees about the effect that legislation or regulation might have on the company as well as its employees and stakeholders. However, it is a federal crime to interfere with an individual's ability to vote for federal candidates, or to coerce that individual to cast a ballot in a specific way.⁴ Similarly, it is unlawful to bribe or offer an expenditure to an individual in exchange for voting a certain way.⁵ Many states prohibit employers from intimidating, threatening, or coercing employees to refrain from voting or to vote in a certain manner. Some states also prohibit employers from gathering or keeping a record of an employee's political activities, associations, or communications unless certain conditions are met.⁶

Companies can also generally spend as much money as they want to influence elections. However, federal contractors are barred from making any contribution or promise to make such contribution to any political party, committee, or candidate for federal office or to any person for any political purpose or use.⁷ The federal contractor political contribution ban aims to avoid the appearance that taxpayer-funded government contracts are for sale or politically influenced.

Federal Laws Protecting Employees

The National Labor Relations Act (NLRA), which applies to both unionized and non-unionized non-supervisory employees, is a federal law that protects employees who engage in concerted activities for purposes of mutual aid or protection. The U.S. Supreme Court has interpreted "mutual aid or protection" to mean that employees may organize as a group to "improve their lot" outside the employer-employee relationship.⁸ The NLRA restricts an employer's right to limit non-supervisory employees' communications about wages, hours and other terms or conditions of employment. Therefore, if a protest or rally is considered protected concerted activity, the employer would be prohibited from taking adverse action against participating employees for engaging in such activity. NLRA protections generally apply only to circumstances where the political speech or conduct (1) is concerted; (2) there is a close nexus between the political expression and employment; and (3) it involves terms and conditions of employment under the employer's control.

Political discussions may trigger NLRA rights when they relate to employment issues, such as discrimination or minimum wage increases. Additionally, enforcing restrictions during non-work time (such as breaks) or in non-work areas (such as break rooms) may violate the NLRA. Additionally, the National Labor Relations Board (NLRB), the federal agency responsible for enforcing the NLRA, has recently dramatically expanded the concept of "protected concerted activity" to include employee advocacy on behalf of individuals who are not "employees" as defined by the NLRA, including individuals employed by another employer.⁹

NLRB General Counsel Jennifer Abruzzo acknowledges that she wants to expand the scope of protected concerted activity to include social justice and certain "political statements," such as writing phrases in support of political and social causes on company uniforms. Former NLRB Acting General Counsel Peter Ohr, who now serves as the NLRB's Deputy General Counsel, laid the groundwork for the NLRB's "vigorous enforcement" of protected concerted activity as it relates to employees' participation in social justice activity in the workplace. In a 2021 memorandum, Mr. Ohr noted that "under the framework of the law as presently articulated, cases involving retaliation against concerted employee conduct will be vigorously pursued, where these and other factors exist to tie workers' protests to their interests as employees."¹⁰ Mr. Ohr argued that "[g]oing forward, employee activity regarding a variety of societal issues will be reviewed to determine if those actions constitute mutual aid or protection under Section 7 of the Act." To illustrate, Mr. Ohr suggested that the NLRB could take the position that "employees' political and social justice advocacy" is protected by the NLRA "when the subject matter has a direct nexus to employees' 'interests as employees.'"

Politics in the office can also trigger equal employment opportunity (EEO) laws. Even though no general federal law prohibits employment discrimination because of political affiliation or activity, political conversations at the workplace can potentially lead to claims of employer discrimination, harassment, and retaliation, which may violate federal, state, or local anti-discrimination laws. For instance, if the political discussion involves race, color, sex, sexual orientation, gender identity, national origin, religion, age, or disability, anti-discrimination law claims could arise. Employees might allege that an employer's action in response to a political discussion is evidence of, or serves as a proxy for, illegal employment discrimination. Further, although political speech is not covered by Title VII, companies may violate the law if a negative employment action is shown to be based on a protected characteristic or if they react to political speech differently based on a protected characteristic.

Litigation asserting such claims could become more common in the wake of the U.S. Supreme Court's recent decision in Muldrow v. City of St. Louis, No. 22-193 (Apr. 17, 2024), which makes it easier for plaintiffs to bring workplace discrimination lawsuits under the lower standard established by the Court. Still, the EEOC is clear that Title VII requires that the alleged harm be based on a protected characteristic. In the EEOC's recently updated harassment guidance, the agency stressed that "[i]f an employee experiences harassment in the workplace but the evidence does not show that the harassment was based on a protected characteristic, the EEO statutes do not apply." To illustrate this point, in a footnote, the EEOC cited Tademe v. Saint Cloud State Univ., 328 F.3d 982, 991 (8th Cir. 2003), where the court held that the employer was entitled to summary judgment because the evidence showed that harassment was based on inter-departmental politics and personality conflicts rather than a protected characteristic.

Employers may encounter a dilemma in complying with both the NLRA and EEO laws, as the NLRB has chosen to protect as concerted activity employee speech and actions that some other employees would find harassing or discriminatory. Tensions between enforcement of the NLRA and anti-discrimination laws have not yet been addressed by agreements between enforcement agencies or departments. Inter-agency and intra-agency agreements are generally unenforceable, non-binding agreements signed between various agencies that clarify agencies' respective jurisdictions, assign regulatory tasks, and establish ground rules for information-sharing, investigations, training, public outreach, enforcement, and other informal arrangements. Ultimately, greater collaboration between the NLRB and EEOC in the near-term is highly likely, especially a possible joint enforcement memorandum on protected concerted activity.

"Captive Audience" NLRB Memorandum and State Laws

The NLRA and longstanding NLRB precedent give employers the right to hold mandatory employer-sponsored meetings.¹¹ Mandatory employer-sponsored or so-called "captive audience" meetings are those an employer convenes during working hours to educate employees on certain topics, particularly the employer's views on unionization. Significantly, in 2022, the NLRB general counsel issued a memorandum claiming that captive audience meetings violate the NLRA.¹² As a consequence, NLRB regional offices have been pursuing unfair labor practice charges against employers to secure reversal of longstanding precedent supporting an employer's right to hold mandatory group meetings. This is despite the fact the NLRA explicitly permits employers to express any views if such expression contains no threat or promise of benefit. While the NLRB has not yet ruled on the issue, it is likely the agency would take an aggressive position.

After lobbying by labor unions and their allies, a growing number of states have passed laws banning employers from taking adverse action against employees for refusing to attend or participate in employer-sponsored meetings or otherwise requiring them to listen or receive communications regarding employer opinions on "religious" or "political matters." The state legislation broadly defines "political matters" to include "matters relating to elections for political office, political parties, proposals to change legislation, proposals to change rules or regulations, proposals to change public policy and the decision to join or support any political party or political, civic, community, fraternal or labor organization."¹³ These bans include a similarly expansive definition of "religious matters" to include "the decision to join or support any religious organization or association."¹⁴ Under these laws, employers are prohibited from requiring employees to attend discussions of state policies or other topics that might be considered "political matters."

States will surely continue to test the bounds of how they can regulate workplace speech, setting up future legal challenges over the extent to which employers' First Amendment rights protect their communications with employees. In the meantime, business groups have filed lawsuits challenging captive audience bans, arguing the bans violate employers' First Amendment rights and are preempted by the NLRA.

Employee Voting Leave, Political Participation, and Off-Duty Conduct

Federal law does not require employers to give employees time off to vote, but a significant number of states and local jurisdictions have enacted laws enabling employees to vote during what would otherwise be work hours. Whether an employee is entitled to take leave—and whether that leave is paid—varies greatly among states, and often depends on the specific hours that voting is conducted in a jurisdiction, as well as the employee's work schedule.

Some states and local jurisdictions expressly prohibit employers from enforcing any rule or policy that prevents or forbids employees from engaging or participating in politics or from becoming a candidate for public office and carrying out the duties of that elected office.¹⁵ Some states also require employers to provide unpaid leave so employees can serve as elected officials.

In addition, some states have adopted laws regarding off-duty lawful conduct that make it unlawful for employers to discriminate against or discharge an employee for engaging in lawful conduct or for using lawful products while not on work premises during nonworking hours.

Employee Use of Social Media to Engage in Political Speech

In today's employment climate, employees are more likely to engage in political speech via social media platforms than in person. However, an employer disciplining an employee for a social media post may be exposed to liability. At least 26 states have social media privacy laws that prohibit employers from accessing an employee's non-public social media posts. At their core, these laws prohibit employers from requesting or requiring employees to grant access to their personal social media accounts; requesting or requiring employees to disclose the login information to their personal social media account; requesting or requiring employees to access their social media account in the employer's presence; and requesting or requiring employees to accept a "friend request" from their employer.

Pursuant to these laws, any employer wishing to discipline an employee for a post on social media must first trace the origin of the post before taking any adverse action against the employee, to ensure that the employer did not obtain the post in violation of the law. Therefore, employers are limited in how they can access an employee's social media in these states. Any discipline that is issued as a result of improperly obtained social media posts would subject the employer to potential liability under these various laws.

Social media also amplifies an employer's exposure to potential liability under EEO laws and the NLRA. With respect to the NLRA, taking action against an employee who posts on social media for the purpose of seeking "mutual aid or protection" may be unlawful. Even the mere maintenance of a social media policy that restricts employees' Section 7 rights may violate the NLRA.¹⁶

In the EEO context, courts often focus on whether social media policies are enforced in an equitable way. For example, in Carney v. City of Dothan, 158 F. Supp. 3d 1263, 1282 (M.D. Ala. 2016), the court held that an employee's discrimination claim failed because the employer demonstrated equitable enforcement of its social media policy.

Recommended Practices

Employers may restrict political speech and activities that occur during work hours so long as the restrictions account for the exceptions imposed by federal, state, and local laws.

• Workplace Politics and Social Media Policies. Any rule or policy on workplace politics must account for activities and communications protected by the NLRA or applicable state and local laws. Employers should craft and implement effective policies and rules related to legitimate employer interests that reduce any ambiguity over what political activity or expressions are covered. Employers may want to discourage supervisors from having political discussions with subordinates to minimize potential claims of discrimination, harassment or bullying. As noted above, supervisors are not protected by the NLRA. However, any such policy also must be tailored to comply with applicable state law. Employers should seriously consider implementing a social media policy. Employers should consult with experienced labor counsel regarding compliance with the NLRB's stringent Stericycle decision on employer policies and rules.

• Communication Regarding Policies. Employers should remind employees about any policies and rules covering anti-discrimination, harassment, retaliation, social media, voting leave, and any other related areas. Employers should first review these policies to ensure they account for the evolving legal landscape.

• Consistent Application of Policies and Investigations. Importantly, employers should apply all policies and rules in a consistent, uniform, and non-discriminatory manner. Likewise, if an investigation is needed, the investigation must be conducted thoroughly and impartially.

• Training. Employers should also consider training to ensure any policies are effective and known by all employees. It is especially important to train managers and supervisors on lawful policies and rules related to political activity. Training for managers and supervisors should also be geared towards a general awareness of the pitfalls of limiting political speech and the potential risks for liability under EEO laws and the NLRA. Notably, employers may want train managers on how to identify politically charged conversations and address them appropriately.

• Have a Gameplan. Employers should be prepared to promptly and effectively address any violent, substantially disruptive, unlawful, and other political communications and activities. Employers should also consider making dispute resolution procedures available to employees who may feel uncomfortable by political activities in the workplace. At a minimum, employers may want to designate an HR or legal contact for employees to contact for any concerns. If a matter appears to have spiraled out of control, employers should consider communicating with counsel, both internal and external, to minimize and hopefully avoid reputational risks to the company's brand. In doing so, employers should have an action plan of what to do and what resources to activate if brand reputation is at risk. Finally, employers should also be prepared for employees to take the leave time afforded under applicable state and local laws to vote or otherwise participate in the upcoming election.

• Awareness of State and Local Laws. As detailed above, it is critical that employers be mindful that states and local jurisdictions often provide greater protections for employees. For example, some states' laws may extend First Amendment-type protection to private employees. Additionally, employers should be aware of the differences between federal EEO laws and state EEO laws.

Conclusion

Ultimately, a carefully crafted and uniformly enforced policy that limits certain political activities and political speech can help increase worker productivity, lower the risk of employee claims, and contribute to a better workplace. However, even where the employer has legal grounds to take adverse action against an employee, it should compare the benefits of doing so with the risks inherent in appearing to suppress the employee's free speech. At the end of the day, employers should be particularly aware of employees' rights and limits on employee rights related to political speech and activities in the workplace and be prepared to act proactively to mitigate issues before they arise.

Footnotes

1 See California (Cal. Lab Code §§ 1101; 1102); Colorado (Colo. Rev. Stat. §§ 8-2-102; 108); Connecticut (Conn. Gen. Stat. § 31-51q); Illinois (820 ILCS 40/9) (only prohibits employers from keeping a record of an employee's political associations, activities, publications, or communications); Louisiana (La. Rev. Stat. §§ 23:961, 23:962); Michigan (Mich. Comp. Laws § 423.508); Nevada (Nev. Rev. Stat. § 613.040); New York (N.Y. Lab. Law § 201-d); North Dakota (N.D. Cent. Code §§ 14-02.4-01, 14-02.4-03); South Carolina (S.C. Code § 16-17-560); and Utah (Utah Code § 34A-5-112).

2 Gay Law Students Ass'n v. Pac. Tel. & Tel. Co., 595 P.2d 592, 610 (Cal. 1979), superseded by statute (a statute which was subsequently held unconstitutional); Ross v. Indep. Living Res. of Contra Costa Cnty., No. C08-00854 TEH, 2010 WL 1266497 (N.D. Cal. Apr. 1, 2010) (holding plaintiff's participation in advocacy for the disabled was political as it was "espousing the cause of equal access for individuals with disabilities").

3 Conn. Gen. Stat. § 31-51q.

4 18 U.S.C. § 594.

5 18 U.S.C. § 597.

6 See, e.g., Mich. Comp. Laws 423.501.

7 See 52 U.S.C. § 30119; 11 C.F.R. § 115.2 (noting that "[t]his prohibition does not apply to contributions or expenditures in connection with State or local elections.").

8 Eastex, Inc. v. NLRB, 437 U.S. 556, 564-65 (1978).

9 American Federation for Children, Inc., 372 NLRB No. 137 (2023).

10 NLRB Acting GC Memorandum 21-03, Effectuation of the National Labor Relations Act Through Vigorous Enforcement of the Mutual Aid or Protection and Inherently Concerted Doctrines (Mar. 31, 2021).

11 29 U.S.C. §158(c); Babcock v. Wilcox Co., 77 NLRB 577 (1948).

12 NLRB GC Memorandum 22-04, The Right to Refrain from Captive Audiences and other Mandatory Meetings (Apr. 7, 2022).

13 Maine: 26 M.R.S. § 600-B.

14 Id.

15 See, e.g., Colorado (Colo. Rev. Stat. § 8-2-108); Louisiana (La. Rev. Stat. §§ 23:961, 23:962).

16 See Stericycle, Inc., 372 NLRB No. 113 (2023).

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.