Well, regardless of your political leanings, it’s definitely been an interesting political season. I have witnessed several heated political discussions among my acquaintances, and even in my family (let’s just say that my crazy teenagers don’t share my political views). Although physical violence has not yet been involved, there has been some nasty name-calling. And these conversations can and do occur in the workplace. So what can a private employer do about political discussions in the workplace?
There are no federal laws applicable to private employers that protect employees on the basis of their political affiliation. (Public employers, however, may be subject to such laws). As far as state laws, only a few – such as California, Louisiana, and the District of Columbia – have enacted laws that prohibit discrimination by private employers against an employee based on political affiliation. Some cities and counties may have local ordinances that also provide such protections. In those jurisdictions, employers cannot take any adverse employment action against an employee simply because he supports a particular political party.
Regardless of whether political affiliation protections exist, however, a private employer can prohibit political discussions in the workplace. “But what about the First Amendment right to free speech?” some may ask. The First Amendment prohibits the federal government from limiting citizens’ free speech rights – but it doesn’t apply to private employers! So employees do not have a right to free speech in a private workplace, and the employer can choose to restrict speech on any topic – including politics.
Of course there are caveats. At least two states – South Carolina and Connecticut – protect freedom of expression. But even there, employers can prohibit political speech if it is disruptive. Of course the employer needs to ensure that it is being consistent in enforcing any speech prohibitions, as political discussions can sometimes implicate other protected characteristics – like race, gender and religion.
In addition, the National Labor Relations Act, which applies to both unionized and non-unionized workplaces, protects employees’ rights to engage in discussions about the terms and conditions of employment. So if the political discussion involves which political candidate may be better with regard to wages or benefits, for example, that specific discussion may be protected under the NLRA.
So bottom line – employers can generally prohibit political discussions in the workplace – but if you do so, make sure you’re being consistent and careful!