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Elections: Can My Boss Take Action Against Me Because of My Choice for Presidential Candidate?

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With the upcoming election—an election that is certain to be divisive among Florida residents— it is inevitable that discussions regarding politics may arise at work. So, what if they do? And what if you say something about a candidate your boss does not like? As many Americans may be wondering, what are your rights as an employee in the workplace when it comes to supporting your choice political candidate? The answer to these questions depends largely upon whether you are a public or a private employee. In short, public employees retain First Amendment rights in certain circumstances concerning political speech, while private employees simply do not have the same rights at work.

Public Employees’ Rights and the First Amendment

The 2016 presidential election is only a month away. So what are your rights to openly support your candidate at work? Under the law, if you are a public employee—a government employee in some capacity—then you have greater employee rights with regard to the First Amendment than private employees do to voice your preferences for a presidential candidate. However, your rights to voice your opinions about politics still can be limited in certain circumstances, such as if you are in a position that requires you to make political policy decisions.

Pursuant to the case of Pickering v. Board of Education (1976), the U.S. Supreme Court determined that “the First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern.” The Court reasoned that we must “balance the interest of the employee in commenting as a citizen on matters of public concern, against the interest of the public employer in promoting the efficiency of the public services it provides through its employees.” Unless there is an exception to the First Amendment protection, a public employer cannot take action against the employee.

As we mentioned, however, a public employee’s First Amendment rights are limited in cases where political speech is made “pursuant to the employee’s official duties.”

Furthermore, public employees are also protected under the 14th Amendment, as well as the Florida Constitution through the mechanism of 42 USC 1983. Indeed, the 14th Amendment to the U.S. Constitution provides individuals the right to the equal protection of the laws, so that no one law may be applied to two people in a separate manner. 42 USC 1983 (a portion of the U.S. Code) provides that anyone who deprives an individual of his or her rights pursuant to the Constitution may be held liable for any resulting injuries.

Private Employees’ Rights to Political Speech at Work

Unlike public employees, employees of private corporations simply do not have the same rights. To be sure, you could be fired for not removing a political sticker from your car, and you can also be disciplined by your employer or even fired for voicing political views on your personal blog or Facebook page. One major misconception exists among private employees free speech rights are not the same as they are for public employees. As such, you can indeed be fired, for example, if you wear a campaign button to work and refuse to remove it after your boss tells you to do so.

Here, it is important to note that union-related activities (although not political speech) are protected by the National Labor Relations Act (NLRA). To be sure, the NLRA provides employees the right to engage in concerted activity in organizing for employees’ mutual aid and protection. This protection exists as long as there is no associated solicitation in the workplace.

Contact a Florida Employee Rights Lawyer

If you have concerns about your rights as an employee, particularly with regard to the upcoming presidential election and your rights to express your viewpoints, you should speak with an experienced Florida employee rights lawyer. An advocate at our firm can answer your questions. Contact Scott • Wagner and Associates today.

Resources:

http://www.americanbar.org/content/dam/aba/administrative/labor_law/meetings/2008/ac2008/143.authcheckdam.pdf

http://www.npr.org/templates/story/story.php?storyId=123024596

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* Cathleen Scott is licensed to practice in Florida only.

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