The current US political environment is often regarded as the most antagonistic and polarized in living memory, and has created landmines for employers. Personal politics have become increasingly controversial, pervading areas that were once safe. Opinions are amplified by social media. Technology has blurred the boundaries of the workplace and the workday by enabling employees to work anywhere anytime. This is evident more than ever in the COVID-19 pandemic.
In this volatile atmosphere, employers are concerned with the effect of employees’ political discussions and conduct, both at work and off-duty, on their legal liability and business productivity.
Political Expression by Employees
Every day in the media, we see situations that keep employers awake at night. Whether it is an off-duty private employee photographed making a controversial gesture to the Presidential motorcade, or a public school teacher suspended in connection with social media posts of his attendance at a political rally that was the precursor to criminal acts by some attendees.
Employers also deal with these issues every day in the workplace. When an employee is offensive or argumentative, it can disrupt business operations, contribute to a difficult working environment, or affect the employer’s business reputation or client relationships. When this conduct takes on political tones, employers are often apprehensive about how it can and should be handled.
Freedom of Speech
The First Amendment guarantees that the government will not limit the free speech of its citizens. Contrary to popular misconception, the private sector, non-unionized employees cannot assert this constitutional right to freedom of speech in the workplace. The First Amendment only restricts state actors, and therefore public employers. It does not prevent a private employer from imposing restrictions on employee speech or conduct that is not otherwise protected. In certain very specific situations, a private employer that is fulfilling a traditionally public function, or is sufficiently controlled by, or intertwined with, a government agency could also be considered a state actor but these situations are uncommon.
Although a public employee is constitutionally protected by the First Amendment, this is not a free pass to say or do anything without limitation. The employer’s reasons for restricting employee speech are considered. However, if a public employee is acting as a citizen on a matter of public concern, their speech or conduct is likely to be constitutionally protected, and the public employer must have a compelling reason for restricting it. A public employer must therefore be extremely careful when restricting or disciplining employees for their speech or conduct. Having policies that prohibit social media activity during the workday are helpful. Of course, teachers’ abilities to hold students hostage to their beliefs during the instructional day remains an area where employers can exert significant control over the teacher.
Federal Employee Protections
Private employees may not claim the protection of the First Amendment in the workplace but their speech and conduct are protected, directly or indirectly, by certain federal legislation.
The National Labor Relations Act (NLRA), which applies to almost all employees, union and non-union, protects an employee’s right to “engage in … concerted activities for the purpose of collective bargaining or other mutual aid or protection,” or to work together to improve the terms and conditions of their employment. A discussion between employees whether in the workplace, off-duty, or on social media, about working hours, wages, or workplace conditions could therefore be protected by the NLRA. An employee who publicly advocates for improved workplace safety regulations or encourages voting for a political candidate based on their pledge to increase the minimum wage may be deemed protected by the NLRA. Further, a company policy prohibiting all political speech would likely violate the NLRA.
Political speech can encroach on other areas of federal protections such as anti-discrimination legislation and harassment laws. While federal law does not protect an employee from discrimination for political affiliation, it does protect against discrimination or harassment for other reasons including, but not limited to, race, color, religion, national origin, and gender. If an employer’s actions or policies regarding the conduct of employees affect a protected class of people, they could be deemed discrimination or harassment on one of these grounds and open the employer up to legal action.
The Stored Communications Act (SCA) is also relevant in this area. Dating back to 1986, the SCA regulates the unauthorized disclosure of electronic communications stored with technology providers. Although it predates social media as we know it, the SCA has been applied to restrict an employer’s right to access or monitor aspects of an employee’s “non-public” social media activity. However, a private employer still has broad powers to monitor and restrict any access to personal social media on employer systems.
State Legislation
Some states have enacted statutes to extend the First Amendment rights of private employees or to implement specific protections for political expression. Here in Delaware, employers are prohibited by state statute from any direct or indirect attempt to hinder, control, coerce, or intimidate an employee in the exercise of their right to vote in any general, special or municipal election (15 Del. C. §5162 .)
Delaware has also enacted the Employee/Applicant Protection for Social Media Act to protect an employee’s private activity on social media. An employer may not demand access to an employee’s private social media accounts, or that an employee access another person’s personal social media accounts (e.g. another employee); force an employee to accept a “friend” request; or make an employee disable privacy settings on personal social media accounts.
The Delaware Whistleblowers’ Protection Act provides protection from discrimination and retaliation for employees who make reports to their employer or a public body, participate in investigations and hearings, and/or refuse to commit violations concerning health and safety hazards, serious deviations from financial management or accounting standards, and/or noncompliance or an infractions concerning election campaign and contributions.
Beyond the Law
It need not be restated that an employer must know and comply with applicable state and federal law or potentially face costly and time-consuming lawsuits. However, legal compliance, though complex, is not the only consideration. How an employer handles instances of employee political speech or conduct can have professional and personal repercussions, however well-intentioned.
Just as an employee’s actions can be amplified in the current political and digital age, so too can an employer’s. Even in cases where an employer has acted within the law, their business can be damaged by the publicity that is given to their action, or lack of action, toward employees. Companies can, and have, lost a lot of business because of strategic missteps in this area.
Practical Application
Most employers have no desire to restrict the political expression of their employees and are genuinely motivated to create a workplace that is legally compliant, respectful, and productive. The first step toward this is to create comprehensive company policies that are well communicated and consistently applied to every employee and every situation. Relevant policies include:
- Company Code of Conduct
- Dress Code
- Social Media Policy
- Equal Employment Opportunity Policy
- Non-Harassment Policy
- Non-Solicitation Policy
Policies should be sufficiently generalized so that they are viewpoint neutral, applying to all political beliefs. But a blanket ban on political speech or conduct will not suffice as it will likely run afoul of the NLRA. Policies should have business justifications such as preventing disruption to business operations and maintaining safety in the workplace. It is often easier to control characteristics of employee speech or conduct rather than its content; e.g. a prohibition on profanity in the workplace or on clothing.
Most importantly, policies should be applied consistently to all employees, regardless of their beliefs or their seniority level. If this is not possible, then there is a problem with the policy.
What's Next?
Whether you are worried about avoiding future issues in the workplace or dealing with a current problem, there are steps you should take to minimize your risk as an employer:
- Review your company policies, and update them where necessary.
- Communicate company policies and your expectation of mutual respect to employees, managers, supervisors, and HR.
- Train managers, supervisors, and HR in the application of company policies.
- Apply company policies consistently.
- Follow disciplinary procedures in accordance with your policy and the law.
- Document any incidents/behavior, the decision-making process, and actions taken.
- Get legal advice to ensure your policies are compliant and to properly handle an issue before it becomes a major problem.
Our employment law team at Morris James counsels employers of all sizes and across diverse industries in the Delaware region. We help to design comprehensive policies tailored to an individual employer and train staff on these specific policies. We are available when a problem does arise to offer immediate advice to minimize your risk and allow you to focus on your business.
For more information, please contact Jim McMackin (302.888.5849; jmcmackin@morrisjames.com) or Allyson Britton (302.888.5210; abritton@morrisjames.com).
