As the 2024 U.S. presidential election quickly approaches, tensions are sure to heat up, fueled by the incendiary language of political actors and increasing political polarization. Employers must be mindful of the rights and obligations imposed upon them regarding political speech in the workplace, regardless of whether it occurs on or offline. If not handled properly, political discussions can lead to breakdowns in workplace relationships and morale, adverse employment actions or even lawsuits.
If political discussions become inappropriate, or speech violates Title VII of the Civil Rights Act of 1964, California's Fair Employment and Housing Act (FEHA) or other laws, employers should enforce their policies against harassment, discrimination and retaliation in the workplace. However, these policies should not be so broad that they discourage or inhibit protected activity. Additionally, employers should not engage in conduct that could be construed as pressuring or influencing employees' political activities, associations or choices.
Federal and State Protections and Limitations
At the federal level, there are few political protections for employees against private employers, however, Sections 7 and 8 of the National Labor Relations Act (NLRA) and guidance from the National Labor Relations Board (NLRB) indicate that certain employee political activities are protected within reason. Specifically, employees have the right to address work-related issues and share information "about pay, benefits, and working conditions with coworkers on Facebook, YouTube and other social media." This is considered "protected concerted activity." For example, in Eastex, Inc. v. NLRB, the court ruled the "mutual aid or protection" clause of Section 7 of the NLRA protected the circulation of union-sponsored materials circulated in nonworking areas of the employer's property outside of work hours that urged employees to write their legislators to oppose incorporation of the state's right-to-work statute, criticized the presidential veto of an increase in the federal minimum wage, and urged employees to register to vote.
However, an employee individually complaining about work is not a concerted activity. An employee's complaints need to have some relationship to group action to be protected. Similarly, making highly offensive, knowingly false or publicly disparaging statements is not protected. In fact, such statements may result in defamation, business interference or other claims. Additionally, while statements made in litigation related to an employment dispute are generally protected by litigation privilege, extra-judicial statements that do not promote the goals of the litigation are not.
Some states provide additional protections to employees who engage in political speech. For example, California prohibits employers from preventing employees from engaging in politics, becoming candidates for office, trying to control employee political affiliations or actions, or coercing or threatening employees in order to make them adopt or refrain from political activities. Accordingly, employees may advocate for various causes, including LGBTQ+ or disability rights. Employers should also keep in mind that employees have the right to take time off to vote.
Employer Responsibilities
Employers should be prepared to enforce their pre-existing policies against discrimination, harassment and retaliation, particularly where Title VII of the Civil Rights Act of 1964 or other laws are implicated by speech in the workplace, regardless of whether it is couched as political speech. Further, employers have a duty to prevent discrimination, harassment and retaliation based on protected characteristics. These include race, ethnicity, religion, creed, national origin, ancestry, physical or mental disability or condition, reproductive decision-making, genetic information, marital status, sex, gender, gender identity or expression, sexual orientation, age, veteran or military status.
This issue becomes particularly difficult when employees might be inclined to repeat statements made by political actors while at work, particularly where those statements may run afoul of anti-discrimination laws in the workplace. For example, referring to Mexican immigrants as "rapists," stating that Haitian immigrants "eat pets," or calling Black Lives Matter activists "thugs" could lead to race, ethnicity, ancestry or national origin discrimination claims. Likewise, indicating that members of the LGBTQ+ community are "groomers" can lead to gender, gender identity, gender expression and sexual orientation discrimination claims, among others. Regardless of whether the employee contends that they are engaging in political speech, employers should put a stop to any statements that would violate state or federal law.
Notably, there is no First Amendment exception to enforcing anti-discrimination laws like Title VII or FEHA. Courts have found that such laws do not violate the First Amendment because, among other things, employers do not express themselves through employees' discriminatory speech. In addition, courts have ruled that such speech amounts to discriminatory conduct; the regulation of discriminatory speech is a time, place and manner restriction; the law is narrowly drawn and serves a compelling government interest; and other workers would be a captive audience harmed by the discriminatory speech.
Protections and Limitations for Discriminatory Speech Online
Today, many Americans engage in political speech or activism online, including on social media platforms. Thus, it is important for employers to be mindful of the protections and limitations regarding online speech to the extent that it may impact the workplace. For example, California prohibits employers from asking for employees' or applicants' login information to social media or other online accounts, asking employees to access their social media while the employer is present ("shoulder-surfing"), requiring that employees disclose their social media, or retaliating against employees or applicants who refuse to divulge their social media information.
However, employers are allowed to ask employees to disclose their social media if it is believed to be relevant to an investigation related to allegations of employee misconduct or a violation of laws or regulations, and as long as the social media access is only used for the investigation or related proceedings. For example, in Okonowsky, v. Garland, an employee was targeted by another employee's sexually violent Instagram posts. The Ninth Circuit found that "offsite and third-party conduct can have the effect of altering a working environment in an objectively severe or pervasive manner." However, even where an employer has good cause to view an employee or applicant's social media, employers should do so carefully as improper handling of such data could lead to additional claims such as discrimination.
Employers should work closely with experienced labor and employment counsel to ensure that their policies and practices regarding political speech and social media, as well as those prohibiting discrimination, harassment and retaliation, are compliant and up-to-date. When employers need to investigate employee social media or address inappropriate statements that may have some political connection, employers should also consult with their counsel to mitigate the risk of violating any applicable laws or facing future claims.
Originally published by Risk Management Magazine.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.