Navigating Employee Political Speech and Expression in the Workplace (in an Election Year and Beyond)

As we approach election day, employers are likely to notice an increase in discussions about political and social issues in the workplace. Indeed, a recent survey found that 87% of employers expressed concern with managing divisive political and social beliefs among their employees leading up to the election. (Law360, June 11, 2024).

Though private employers are not governed by the First Amendment and are generally allowed to manage their employees as they deem appropriate — including by limiting employees' ability to disseminate their views — employers must proceed with caution. Certain forms of employee speech and expression may implicate a variety of federal, state and local laws.

This article will provide an overview of these applicable laws and help employers develop effective workplace policies that balance protecting employees’ rights with the need to maintain a harmonious and productive work environment.

Understanding Private Employees’ Rights

Employers contemplating limits on employee speech or expression in the workplace should be aware of a variety of federal, state and local laws, and should tailor their policies to ensure consistent application in compliance with these laws.

Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e, et seq.)

Title VII protects employees from employment discrimination based on race, color, religion, sex (including homosexuality or transgender status) and national origin.

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.

Section 7 of the National Labor Relations Act (NLRA) (29 U.S.C. § 157)

The National Labor Relations Act (NLRA) is a federal law that grants both unionized and non-unionized non-supervisory employees the right to engage in “concerted activities” for their mutual aid or protection, which can include discussions about workplace conditions and political issues. 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 is concerted; involves a close nexus between the political expression and employment; and 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. This means that employees may discuss political matters that impact their workplace or labor conditions without fear of employer reprisal. The current composition of the NLRB has expressed interest in pushing the NLRA scope to include more societal issues and social justice activity.

Accordingly, employers should be cautious not to discipline employees for engaging in such discussions, as doing so could risk running afoul of employees’ rights under the NLRA.

State-Specific Laws

Most states have anti-discrimination laws that closely track federal law or are even more protective than federal law. For instance, there is no federal protection for political affiliation, but many states and localities include political affiliation in their non-discrimination statutes. In those states, employers are prohibited from taking adverse action against an employee based on their political affiliation.

Employers should also be mindful of state voting leave laws, as well as laws providing leave for elected officials or election officials. Employers in these states must provide employees time off to vote or otherwise participate in elections and are prohibited from retaliating against employees for exercising that right or otherwise interfering with employees’ rights to participate in elections. For example, Iowa, Minnesota and North Dakota all have state laws related to voting leave. In Iowa, employees are entitled to take up to two hours of paid leave to vote, depending on their scheduled work hours and the hours the polls are open. Minnesota likewise requires employers to provide paid leave sufficient to cover the time necessary to appear at a polling place, cast a ballot and return to work. North Dakota, on the other hand, does not explicitly require paid leave for voting, but instead has a state law encouraging employers to establish a program that gives employees time off to vote when their regular work schedule conflicts with the hours the polls are open. Employers should refer to their state’s specific statutory language, as voting leave requirements may vary and some states, including Iowa and Minnesota, impose criminal penalties for an employer’s failure to comply.

Additionally, though private employers may generally express the company’s views on political issues, many states prohibit employers from coercing employees to vote a certain way. Several states, including Minnesota, have also enacted captive audience laws, which ban mandatory workplace meetings to discuss religious or political topics. Some states also prohibit employers from gathering or keeping a record of employees’ political activities, association, or communications.

Develop Effective Workplace Policies (and Follow Them!)

To navigate the complexities of employee speech, employers should draft and implement clear written policies that focus on legitimate business needs and expectations. Employers should remind employees about policies and rules covering anti-discrimination, harassment, retaliation, social media, voting leave and any other related areas; however, employers should first review these policies with counsel to ensure they comply with the evolving legal landscape.

1. Equal Employment Opportunity, Anti-Harassment and Anti-Discrimination. Implement robust policies prohibiting harassment and discrimination. Ensure employees understand what constitutes inappropriate speech under these policies and the consequences of violating these policies.
2. Dress Code. A Dress Code Policy communicates to employees what the organization considers appropriate work attire/appearance and allows an employer to set expectations regarding the image it wants the company to convey. Employers have a right to impose reasonable restrictions on employee appearance and attire worn in the workplace, so long as the policy was not adopted for unlawful reasons and is enforced uniformly. A Dress Code Policy should be consistent with other related policies, such as the Equal Employment Opportunity Policy, anti-discrimination, anti-harassment, and anti-retaliation policies, reasonable accommodations policy, religious accommodations policy and workplace safety policies. Employers should consult counsel before drafting and implementing a dress code policy, as a dress code policy that passes Title VII muster may nonetheless run afoul of Section 7 of the NLRA (at least under the current Board composition), particularly if the employee makes a clear connection between the social issue and the terms and conditions of their employment.
3. Social Media Guidelines. Employers are strongly encouraged to implement a social media policy, but should consult with counsel before doing so. In addition to prohibiting disclosure of trade secrets or other proprietary information, a social media policy can clarify that certain types of conduct, such as hate speech, bullying and discriminatory conduct on social media platforms may be grounds for discipline and/or termination. Employers should be mindful, however, that several states have social media privacy laws that limit employers’ access to employees’ social media sites. Likewise, employers should be careful that their social media policies do not restrict employees’ Section 7 rights under the NLRA.
4. Training and Education. Employers should also consider training to ensure any policies are effective and known by all employees. Training managers and supervisors on lawful policies and rules related to political activity is especially important. The goal of such trainings should be to create 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 to train managers on how to identify politically charged conversations and address them appropriately.

Responding to Employee Speech and Expression Issues

When issues related to employee speech and expression arise, employers should consider the following best practices:

1. Draft Neutral Policies and Enforce Them Equitably. Employers should apply all policies and rules in a consistent, uniform and non-discriminatory manner. Likewise, if an investigation is needed, the investigation should be conducted thoroughly and impartially.
2. Address Issues Promptly. Violations of written policies should be promptly and appropriately addressed and documented by the employer, and expectations should be shared openly with the employee.
3. Seek Legal Counsel. Navigating employee speech and expression issues can feel like a minefield. Before taking any adverse action based on an employee’s political speech or expression, employers are strongly encouraged to consult with legal counsel to ensure such actions are taken in compliance with applicable law and minimize risk of litigation.

Conclusion

By understanding the legal landscape and establishing clear policies, employers can foster a culture that balances free expression with the need for a respectful workplace.