Last updated Oct. 15, 2018.
In America today, it seems there’s no escaping politics. Whether you’re listening to the radio, watching television, or scrolling through your social media newsfeeds, discussions of politicians and political issues are everywhere you turn. So it makes sense that many people want to keep talking politics at work, sorting out the world around the water cooler.
But your employer may not want you to spend your time at work discussing political candidates and issues. For one thing, that’s not what you’re getting paid to do. For another, such topics can lead to conflict between employees with different opinions, making for an unpleasant work environment that reduces productivity.
That raises an important question: Are your politics legally protected in the workplace? In other words, is it illegal for your boss to fire you, discipline you, or otherwise take adverse action against you for talking politics at work?
The answer, as it so often is when it comes to the law, is that it depends. In this context, it largely depends on whether you are a private or public employee. Here’s how.
Article at a Glance
- In the private sector, employees don’t generally have a legal right to talk politics at work; it’s up to their employers what kind of speech will be allowed in the workplace.
- There are legal limits on the power employers can wield over employees’ politics.
- For public employees–those that work for the government–the key question is whether their political speech is on a “matter of public concern.”
Private Employees and Talking Politics at Work
Many Americans mistakenly believe that the First Amendment gives blanket protection to political speech, no matter what the context, speaker, or setting.
This is totally wrong. The First Amendment only prohibits the government from limiting political speech. On the one hand, that means that the government cannot make talking politics at work illegal (although it has more authority over public employees—see below).
On the other hand, it means that if you work in the private sector, without a contract that specifies the terms under which you may be disciplined or terminated, you do not have a right to discuss politics in the workplace.
As such, your boss may generally prohibit you from, or take adverse action against you for:
- Expressing your support for your preferred candidate/cause or your disdain for your boss’s candidate/cause;
- Wearing buttons, hats, or other apparel promoting a candidate or political cause, or displaying stickers, signs, or other paraphernalia promoting a candidate or political cause.
There is a narrow exception to this rule: The National Labor Relations Act (“NLRA”) protects political workplace speech by non-supervisory employees if such speech relates to the “terms and conditions of employment,” such as wages, hours, and benefits. But this statutory language is intended mainly to protect union-organizing and union-related speech, as opposed to more general expressions of political viewpoints.
As such, for a non-supervisory employee’s political speech to be arguably protected by the NLRA, it should relate to specific “terms and conditions of employment” at issue in the specific workplace.
For example, if you are a woman who works for a private employer, and you express to your co-workers that you believe a political candidate’s proposed law would address paycheck inequities that you have observed and reported in your own workplace, you may have an arguable claim that such speech is protected.
On the other hand, if you vaguely opine that the candidate’s policies would be “good for working women,” it is unlikely that such speech is protected.
What Private Employers Can’t Do
Although the law generally permits employers to discipline workers for talking politics in the workplace, it also imposes certain limits on employers with respect to their own or employees’ politics. Some of these limits apply nationwide, but others vary by state. For example:
- Under federal law, it is illegal for an employer to coerce its employees to contribute to a political campaign or political action committee.
- In New Jersey, the Worker Freedom from Employer Intimidation Act prohibits employers from requiring employees to attend an employer-sponsored meeting or participate in any communications with the employer or its agents or representatives, the purpose of which is to communicate the employer’s opinion about religious or political matters.
- In New York, it is illegal for employers to discriminate against employees or prospective employees based on their political activities outside of work.
Public Employees and Talking Politics at Work
If you are a public employee, the First and Fourteenth amendments of the Constitution prohibit your employer from censoring or retaliating against you for political speech that is “a matter of public concern.”
The catch — and it’s a tricky one — is that there is no detailed and final legal definition of what comprises a “matter of public concern.” Rather, we have only a series of decisions, from the Supreme Court on down, protecting particular speech under particular circumstances.
Because it is so fact-specific, an in-depth discussion of what speech is constitutionally protected in the workplace is far beyond the scope of this blog post. But, taking First Amendment case law as a whole, we can make some general conclusions as to what kind of public employee speech qualifies as “a matter of public concern” meriting protection:
Discussing Public Welfare: Protected
Speech that addresses the job performance of a public employer as it relates to the welfare of the public which the public employer serves is usually protected. Such speech includes criticism or opposition to the employer’s actions or policies on grounds that they are discriminatory, wasteful/inefficient, or otherwise harmful to the public. For example, the Constitution likely protects the speech of:
- A school principal who accuses the superintendent of misappropriating academic funds for personal use, since these actions harm students and staff.
- A police officer who accuses his department of mishandling evidence or botching an investigation, since these actions impact public safety and the fairness of the criminal justice system.
- An employee of a state agency who questions the adequacy of funding for an environmental remediation project, since the project relates to public health.
Vague or Personal Complaints: Not Protected
In contrast, speech that only concerns the public employee in question, or is too vague or generalized to apply to any concrete issue that affects the community, is probably not protected. For example:
- A state employee who complains about her agency’s internal policies regarding transfers may not be engaging in protected speech.
- A federal IRS agent who generally gripes to his subordinates, peers, and superiors, “Man, I really hate Candidate X” may not be engaging in protected speech.
Disruptive Speech at Work: Not Protected
As a further wrinkle, even if a public employee’s speech does qualify for protection as a “matter of public concern,” the employer may still limit that speech unless “the interest of the employee as a citizen, in commenting on matters of public concern, outweighs the employer’s interest in promoting the efficiency of the public services it performs through its employees.”
In plain English, this means that if the employee’s speech is so disruptive that it harms the functioning of the employer’s business, the employer may take remedial action.
Were You Fired for Talking Politics at Work?
Given employers’ broad discretion over whether employees can talk politics at work, unless your job specifically involves political advocacy, it’s wise to proceed with caution if you choose to voice your political opinions at work. You are free to campaign for your favored candidate, express your political viewpoints, and engage in partisan debate outside the office.
But the bottom line is that political speech at work is a complicated topic. If you believe you have been retaliated against for engaging in protected political speech, call our offices today for a free consultation.
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