Election season will be in full swing in a few short months, as in any election, there is a strong possibility that the contentious world of politics may spill into the work place.  If this happens, most of the time, it will likely be harmless banter among employees.  However, there is always the risk that things may get out of control and impede smooth operation.  Employers should be mindful of what they can and can’t do when politics enters the workplace.

When decoding whether an employee has a valid claim for being disciplined when engaging in political speech in the workplace, the first critical question is whether it is a public or a private employer.  If the employer is a public entity, courts will engage in a three part test to determine if the employee has a valid claim against the employer. If an employee’s speech is related to a matter of public concern, passes the court’s “balancing test”, and was not made pursuant to his or her official duties, the employee will have a claim against the public employer.

If an employer is a private employer, the analysis in the paragraph above goes out the window.  As a general rule, private employees have no federal constitutional protection when making political speech in the workplace.  Private employers can generally discipline an employee for making political speech on the job.

Like most rules, there are some exceptions.  All employers need to keep in mind that anti-discrimination laws still apply to speech based disciplinary actions, thus employers need to ensure

their political speech policies do not discriminate based on sex, national origin, religion or other protected areas.  Also, some states have laws and local ordinances that prohibit an employer from disciplining an employee for engaging in behavior, such as political speech, that is protected by that state’s constitution.  Such laws are few and far between, and most of these statutes do not apply to political speech that occurs in the workplace, but human resources departments should look at the statutes and case law in their particular state when developing and enforcing such policies .

While private employees have no federal constitutional protection and very little state constitutional protection, private employees do have one major avenue of protection when it comes to workplace speech: the

National Labor Relations Act (“NLRA).  The protections for employee speech provided by the NLRA apply to both union and non-union employees.  The National Labor Relations Board which reviews such cases says that employee speech is protected by the NLRA if it is (1) concerted, (2) about a work related object, and (3) protected.   Employee speech is concerted if it is “engaged in, with or on the authority of other employees and not solely by and on behalf of the employee himself.”  Note that this does not require official union activity or even talk of collective bargaining.  Employee speech is about a “work related object” if it is intended for mutual employee aid or related to wages, hours or other terms of employment.

Even if employee speech is concerted and about a work related object, it must also be “protected”.  Employee speech will not be “protected” if the employee’s actions are unlawful or overly disruptive.  Employers have to jump a relatively high hurdle to establish that an employee’s actions are not protected, however, and rudeness is not enough.  In most

cases, political speech involving elections will not be protected by the provisions of the NLRA but it is a good idea to keep it in mind.

Of course, employers should also consider issues such as employee morale and the feasibility of enforcement when crafting a policy on workplace political speech.  Employer policies should balance workplace efficiency with employee freedom.  For example, in most circumstances a policy could include a prohibition on political speech in areas within view or earshot of customers and limit the size and permissible locations of political buttons and posters.

In sum, most employers should familiarize themselves with the differing legal restrictions depending on whether they are public or private employers, and all should avoid restraining speech protected by the NLRA or local law.  Consulting with legal counsel is recommended before taking adverse employment actions based on political speech.