[author: Tommy Rogers]
My mother would say politics isn’t dinner table talk. Often, it is not something you want to discuss at a cocktail party, either. So, can a private employer prohibit political comments or expression in the workplace? As with most things in life, the answer is a nuanced ‘maybe’; especially since private employers cannot dictate nor control the political opinions or affiliations of their employees.
“I have the right to free speech” is an often-recited statement by employees when making political comments or expressions in the workplace. However, this is a common misconception, unless an employee works for the government or a public sector employer (which carries considerations not discussed in this blog). Generally, the First Amendment does not apply to private-sector employers.
However, other state or federal laws could apply. For example, the National Labor Relations Act (NLRA) protects employees who engage in concerted activity involving the terms of their employment. A political discussion may trigger NLRA rights if the discussion is connected to a work-related issue. And, keep in mind that recent decisions by the NLRB have broadened the definition of what is considered protected activity.
Employers generally have the right to prohibit employees from using company equipment and resources, such as computers, email, and information systems, for non-work-related purposes. Employers may also prevent employees from posting any non-work related written or printed materials, such as political posters, in the workplace within reasonable limits. It is important to uniformly enforce any restrictions and clearly communicate the same to employees. And, remember that an employee’s poster, pin, or shirt addressing work-related issues or union-related materials which express a political view may be protected by the NLRA.
Lastly, certain laws may restrict or prohibit employers from attempting to influence employees’ votes or political activities. For example, several states prohibit employers from trying to coerce employees into voting a certain way. Some states even prohibit employers from disciplining employees for refusing to attend an employer-sponsored meeting concerning political matters.
While it may be tempting to eliminate all political speech in the workplace, similar to not engaging in such discussions over a holiday dinner it’s likely not the best approach. A better approach would be to make sure you understand the laws that apply to your business and ensure any action taken complies with these laws.
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