With the 2024 election fast approaching, employers should expect an increase in political conversation and activity in the workplace. It is critical during the political season for both employers and employees to understand how to navigate political discourse and activity in order to maintain positive working relationships and overall productivity.

In general, public sector employers have little flexibility to govern discussion of politics in the workplace because the First Amendment protects political speech unless it causes disruption in the workplace. However, the First Amendment applies only to government actions and therefore does not apply to private employers. Private sector employers generally have the right to regulate political speech in the workplace through their policies, although these rights are not without limits.

Right to regulate speech – Public sector employers

The First Amendment says, “Congress shall make no law . . . abridging the freedom of speech.” The amendment gives public employees a constitutional right to express their political thoughts in the workplace. That said, public employees must stay within the constitutional bounds of the First Amendment when exercising these rights. A public employee’s political speech is protected when the employee is speaking as a private citizen about a matter of public concern and the speech does not otherwise interfere with the employee’s job duties.

If the employee is speaking as a private citizen, not as part of his job duties, and is speaking about a matter of public interest, courts will balance the employee’s interest in his own speech against the employer’s interest in regulating speech to determine whether the employee’s speech is protected by The First Amendment. Public sector employers are allowed to protect their interest in promoting an efficient workplace, but they should ensure that their practices do not violate employees’ First Amendment rights.

Right to regulate speech – Private sector employers

The First Amendment applies only to “state action” and does not generally apply to private employees, who have more control over what political speech is allowed in the workplace. While private employers are permitted to restrict the speech of their employees and to take disciplinary action against employers for speech violations that violate their employment policies against disclosure of confidential information, against discrimination and harassment, and others, such policies must comply with the Act national law on labor relations. (“NLRA”).

In particular, there is no federal law that specifically prohibits discrimination based on political affiliation or activity. However, discriminatory practices based on political affiliation may cause an employee to claim retaliation, harassment, or discrimination on other grounds through the Equal Employment Opportunity Commission (“EEOC”). For example, a political discussion can quickly become grounds for a harassment or discrimination claim if it targets a protected class. In July 2024, the Ninth Circuit ruled that employers can be held liable for hostile work environment claims based on harassing content posted by an employee. Okonowsky v. Garland109 F.4^th 1166 (Circ. 9 2024). Okonowsky involved a corrections lieutenant’s private Instagram account, where the lieutenant posted “openly sexist, racist, anti-Semitic, homophobic, and transphobic memes.” The employer argued that the posts originated outside the workplace and therefore could not form the basis of a hostile work environment claim. The Ninth Circuit disagreed and pointed out that co-workers could see, comment on, and otherwise interact with the offensive posts inside and outside the workplace. Rejecting the employer’s attempt to distinguish between workplace conduct and social media conduct, the Ninth Circuit noted, doing so “in light of the ubiquity of social media and its prompt use to harass and bully both in ​​inside, as well as outside the physical workplace”. Okonowsky highlights the risk that employees’ off-site use of social media can contribute to a hostile work environment if the content is harassing and affects the work environment.

Okonosky also outlines the standard for hostile work environment claims that considers the totality of the circumstances, meaning that discriminatory social media posts do not have to target a specific individual in order to hold an employer liable. Employers should be aware that they can be held liable for employee conduct that occurs in a non-work environment (including social media).

In addition, the NLRA applies to all non-supervisory employees, both union and non-union, and gives employees the right to form or join unions, engage in protected, concerted activities to address or improve working conditions or to refrain from engaging in concerted activities. Thus, employers are not permitted to violate the rights granted to employees under the NLRA; private employers should exercise caution when restricting political speech in the workplace.

In some cases, concerted activities may involve political speech and therefore may be protected by the NLRA. For example, in February 2024, in the matter of Home Depot USA, Inc. and Antonio Morales, Jr. Case 18-CA-273786The National Labor Relations Board (“NLRB”), the agency that enforces the NLRA, has found that writing “BLM,” the acronym for “Black Lives Matter,” on a uniform is concerted activity protected by the NLRA. The NLRA protects the legal right of employees to engage in “concerted activities” for the purpose of “mutual aid or protection”—whether or not they are represented by a union. The NLRB noted that the employee’s failure to remove the BLM reference was (1) “concerted” because it was a “logical outgrowth” of the employees’ prior discrimination protections; (2) there is a close connection between political expression and employment; and (3) was for “mutual aid or protection” because it involves terms and conditions of employment under the employer’s control.

Considerations for employers –

• Keep your policies up to date. Employers should ensure that their policies are carefully drafted to address federal and state law. Policies should be updated frequently and include clear acceptable standards for employee use of social media.
• Enforce policies consistently. Policies should be applied consistently to all employees to minimize the possibility of discrimination, harassment and/or claims.
• Provide educational resources and training. Employers should promote a culture of respect in the workplace through training and other educational resources.
• Communicate policies effectively. Employers should ensure that all policies related to political speech, including social media policies, are communicated effectively.

(View source.)