Political Speech
This typically comes as a surprise to employees, but they do not have a constitutional right to discuss politics at work, and unlike race, age, gender, age, national origin, religion, disability, etc., political affiliation is not generally protected in the workplace. While many believe the First Amendment protects the right to speech, what it truly protects individuals from is government action that infringes on free speech rights. This means there is no constitution-ally protected right to free speech for private employees. This does not mean then, that it is prudent, even necessarily legal, to prevent all political speech at the workplace.
Political Dress; badges, buttons, posters, etc.
When it comes to employees wearing badges, buttons, or other political dress, an employer may establish a neutral dress code that prohibits the employee from wearing T-shirts or other types of cloth-ing with political slogans or otherwise offensive or profane contents. However, with respect to badges and buttons, federal law will allow employees to wear badges or buttons that are related to a union or to unionization if doing so does not create a safety hazard or impact another legitimate business purpose. In general, if an employee is wearing a political button that also includes a union message, employers should refrain from prohibiting that activity.
Limitations on employer restrictions
There are two general exceptions to the principle that private employers may implement a “no political speech or political activity” policy: (1) any state law provisions protecting an employee’s speech or activity; or (2) Section 7 of National Labor Relations Act (NLRA). Wisconsin generally does not deviate far from federal law regarding permissible activity or speech in the workplace. However, the city of Madison prohibits discrimination based on political beliefs. Additionally, Wisconsin law requires, at a minimum, three hours to vote. The employee must request the time off and the employer can designate the time of day for the absence. On the federal level, the NLRA restricts an employer’s right to limit both union and non-union non-supervisory employees’ communications about hours, wages, or other conditions of employment. These protections may apply both in and out of the workplace and during non-working times. While an employer cannot restrict these incidentally political communications, an employer may still prohibit communications and activity that is purely political and has no nexus to employment conditions. However, as you can imagine, distinguishing between what is purely political communication and what is protected by the NLRA is as clear as mud. Therefore, it is critical that employers establish clear, nondiscriminatory policies which delineate prohibited and acceptable political communications.
Subject to NRLA restrictions and applicable state laws, employers can prohibit employees from:
- distributing “political” materials in the workplace
- displaying campaign or issue materials at their desks or work stations
- soliciting support or money for candidates or issues
- wearing buttons, shirts or other paraphernalia advocating candidates or issues
- using the employer’s computers to express their thoughts on social media
- using a work email to solicit political contributions, attendance at political events, or to promote a candidate or party.
Employees who violate such policies may be legally disciplined Employees who violate such policies may be legally disciplined or discharged. Be aware that because of Section 7 of the NRLA, certain communications such as “vote for Candidate X – Raise the minimum wage!” might satisfy that Section 7 nexus to working conditions for certain types of employees. It is best when drafting or implementing any policy that your legal counsel reviews it.
Therefore, when considering a policy to regulate political expression in the workplace, employers should consider the following:
- Applying a neutrally enforced policy that restricts solicitation/activity only during work hours (not on lunch or rest breaks), employers can refuse to let employees distribute or post political flyers at work.
- It is prudent to send out a reminder to employees of your policy in the weeks leading up to election day.
- If an employer prohibits wearing buttons or posting political posters, the company should be certain that the prohibition is followed without exception.
- Employers can also ban political slogan buttons or T-shirts as part of your dress code policy, particularly for employees who work directly with clients or customers.
The ban must be uniformly applied. If anyone (including the employer) wears a political button, the ban can lose its force and an employee disciplined for violating the policy may have a claim for wrongful discharge or discipline, or even coercion under state law. Also, keep in mind that litigation can arise when political discussions or beliefs intertwine with or are confused with racial, religious, sexual orientation or religious issues.
With all this uncertainty, it is critical that an employer has clear policy that defines permissible employee conduct, which includes workplace conduct, attendance, dress and grooming standards, social media policies, etc. The degree to which political expression is prohibited comes down to an employer’s judgement, so long as it comports with federal law and applicable state law. Some employers believe that discussion of current events builds morale and helps develop relationships among colleagues. Other employees would prefer to avoid it all together.
If you have concerns about certain political activity at work, consider the following:
- Did the employees conduct violate your company’s policy?
- Is the employee’s speech protected by law? (i.e., Section 7 of the NLRA)
- Has your company conducted an independent and thorough investigation?
- How has the company handled these matters in the past?
If you have any uncertainty, err on the side of caution and consult with your legal counsel.
