The attempted assassination of former President Trump last weekend has brought up calls for an overall reduction in the political vitriol that has plagued our country for several years. It has also raised an important question in employment law: what happens when employees engage in political speech at work? on social media? what if that speech calls for political violence in retribution or laments that the shooter wasn’t successful? Let’s be honest, those of us on social media have seen all of those posts over the last week.
While every situation will need to be looked at based on its unique facts and circumstances, here are a couple of considerations an employer should review prior to taking any adverse action against the employee:
Is the speech protected by law?
Contrary to public opinion online, the First Amendment does not protect all speech. Rather, it protects people from the government punishing, censoring, or opposing them on account of their speech. As such, employees in the public sector‒those who work for governmental entities‒have First Amendment rights in the workplace, subject to certain restrictions. The First Amendment generally does not restrict private employers in managing their workforces.That said, private employers do not have carte blanche to discipline employees for speech or social media postings they find offensive. Depending on the nature and subject matter of the speech/post, even private employees may be protected by the National Labor Relations Act, federal anti-discrimination laws, or state/local laws. For example, Colorado has a “lawful off-duty activities statute” that generally prohibits termination based on lawful activity that occurs outside of working hours absent certain exceptions. Nebraska has an anti-retaliation statute that specifically prohibits an employer from (i) coercing or attempting to coerce an employee in voting “or in any other political action” at caucuses, conventions, or elections, (ii) attempting to influence the political action of employees by threatening to discharge them because of their political action, or (iii) attempting to influence the political action of employees by threats to close his or her place of business in the event of the passage or defeat of a ballot or in the event of the success or defeat of a political party at any election. A violation of Nebraska’s law is a Class IV felony.
Also, remember that remote workers in another state may very well be governed by the law of the state in which they work rather than the state in which your company is located. So, be careful assuming your state’s law is the same as the law of the state where the employee lives.
- Are you being consistent in your application of an employee handbook or social media policy?
If you’re allowing MAGA hats, but claiming Biden/Harris t-shirts violate the dress code, you should probably consider whether you’re creating the risk of a discrimination or political retaliation claim. Likewise, if you allow political campaign materials (for any candidate or political issue) to be distributed in the workplace, consider whether you’ve lost the ability to enforce a no-solicitation clause against union organization activity.
- Consider employee morale.
It may not be a legal issue, but employee infighting over politics likely means your workplace is disrupted. Further, as we’ve all seen over the last few years, politics have impacted personal relationships and friendships. If employees are upset with one another because they got into a political debate, how likely are they to work well together on business-related matters?
Overall, the next few months are going to be challenging. Regardless of who wins in November, make sure that your employment policies and practices are implemented consistently and in a manner that doesn’t get you voted out!
If you have any questions on this topic, please contact a member of our Labor & Employment Law Practice Group. We encourage you to subscribe to our Labor & Employment E-Briefs to keep up with the latest HR news, tips, and updates.