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Political Freedom in the Workplace

Politics is a touchy subject, particularly at work. While you may be impassioned about certain issues and candidates, voicing those opinions may not always be legal in the workplace. How much political freedom do you have when you’re on the job? Read on to learn more.

EMPLOYEES

While people cling to the idea of the U.S. Constitution’s freedom of speech clause in the First Amendment, its protection is not always available at work. The First Amendment applies only to state action, or those working in the public sector. In this arena, speech that addresses a matter of public concern (defined as relating to a matter of political, social, or other concern to the community) and does not impede an employer’s efficiency is protected under the First Amendment.

In the private sector, while terminating an employee for expressing views contrary to those of an employer may violate some laws (as discussed below), it does not violate the Constitution.

The National Labor Relations Act (NLRA) gives non-supervisory employees a limited right to engage in free speech and other protected concerted activities for their “mutual aid and protection.”

The NLRA enables employees to:

  • Wear union buttons or insignia in the workplace

  • Engage in solicitations for political causes on their employer’s property as long as neither that employee doing the solicitation or the employee being solicited are engaged in this activity during working time.

  • Distribute political materials on the employer’s property as long as the distribution does not occur in working areas.

  • Engage in political campaign activities that may be contrary to the interests or positions of their employer.

  • Engage in protected concerted activities for their mutual aid and protection to social media such as Facebook and Twitter- even when they’re not working. (Employers take note: This has been a hot topic recently with the NLRB. Be cautious not to violate employees’ rights to express opinions on social media.

That said, employers have the right to take action against any employee who engages in political speech that company leaders find offensive. In today’s environment, more employers are taking this action or at least restricting political speech for fear of lawsuits alleging that an employer permitted a hostile work environment.

EMPLOYERS

Employers are also governed by laws related to political activity.

In terms of political speech, employers can:

  • Allow free use of their facilities for campaigns

  • Sponsor a candidate

  • Allow employees to use company time to contribute to a campaign or even openly endorse a candidate

  • Distribute publications to the general public and spend money in elections independent of a candidate or party.

In terms of campaigning, an employer’s rights are limited based on the type of employee to whom the campaigning is directed:

  • Employers may issue communications on any subject, including express advocacy (a communication supporting or opposing a clearly identified federal candidate) and solicitations for candidates and parties to restricted class employees (executives, stockholders or administrative personnel)

  • Employers are prohibited from using express advocacy to employees beyond the restricted class (salaried foreman and others who supervise hourly employees)

Employers can impose some restrictions on employees including:

  • Limiting employee solicitations to non-working time and distributions to non-working areas.

  • Banning non-employees from engaging in such activities on its property

  • Limiting employee use of the employer’s computer and e-mail systems Restricting access to certain Internet sites through employer-owned electronic systems.

Employees should be careful about expressing all of their opinions on political issues in a workplace setting. The Constitution’s Freedom of Speech may not be there to protect them.

To learn more about political freedom in the workplace, please contact us online or call our offices at (561) 653-0008 to learn how we can help you. At Scott • Wagner and Associates., our approachable and knowledgeable lawyers are dedicated to providing skilled legal representation for your unique situation.

Sources:

  • TLNT
  • Business Week
  • Jupiter Map 250 South Central Blvd. | Suite 104-A
    Jupiter, FL 33458
  • West Palm Beach Map 101 Northpoint Parkway
    West Palm Beach, FL 33407
    (Appointment Only)
  • Burbank Map 3900 W. Alameda Ave. | Suite 1200
    Burbank, CA 91505
    (WeWork Offices)
Florida 561-653-0008 California 213-377-5200
* Cathleen Scott is licensed to practice in Florida only.

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