With the inauguration of Joe Biden, many employees are now publicly expressing their views on the new President – both positive and negative. This guide will help employees know what sort of protections they have, as well as help employers know when it’s appropriate to take action against a politically vocal employee.
First Amendment Protection?
Some private employees might think that the First Amendment prevents their employers from punishing them for their political expression. However, this would be a mistake. The First Amendment only applies to regulation of speech by the government. Generally, private employers are free to regulate their employees’ speech and may even fire employees for sharing their political beliefs. There are, of course, some exceptions to this general rule, which are covered below.
Public sector employers, on the other hand, are subject to the First Amendment. Courts conduct a balancing test that weighs the employee’s interest in speaking on a matter of public concern with the government’s interest in the efficiency of its operations. This is a highly fact intensive analysis that requires a case-by-case assessment of the content and context of the speech in question.
Federal and State Law Regarding Political Expression
Although federal law generally allows employers to discipline employees for their political expression, some states afford greater security to employees. Washington, D.C., for example, prohibits discrimination based on political affiliation. Employees in Maryland and Virginia, however, do not have such protections.
Moreover, nondiscrimination laws such as Title VII require employers to regulate political expression in an impartial way. All employees must be required to follow the same rules regarding political expression, regardless of their age, sex, race, religion, etc.
“Protected Concerted Activity”
Under the National Labor Relations Act, employees have the right to engage in “protected concerted activity,” meaning they have the right to address work related issues and share information about pay, benefits, and working conditions. Employers may not discipline employees who engage in political expression that concerns these matters.
Disruptive Political Expression
Peaceful political expression is one thing, but disruptive, violent, or harassing expression is another. If an employee engages in political expression that makes their co-workers feel uncomfortable or threatened, they shouldn’t be surprised if they are disciplined. Additionally, if an employee engages in political expression that threatens the reputation of their employer, they may be fired. It also goes without saying that an employee may be fired if their political expression crosses into criminal territory – e.g., looting, violence, vandalism, etc.
Unless an employee’s political expression constitutes disruptive, harassing, or illegal behavior, employers should refrain from censoring their employees’ political speech. Employers should strive to foster diversity in the workplace, and this includes diversity of opinion. By adopting policies that clearly articulate when political speech is, and is not, acceptable, employees will feel comfortable sharing their views in a peaceful and respectful manner.
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