Free speech in the US workplace?

During this year’s state and federal elections, employers in the United States face the prospect of increased political activity in the workplace. Some employees may choose to wear political buttons. Others may tack political cartoons to their cubicles or display political screensavers. Employees may even post flyers or circulate e-mail messages and other petitions soliciting colleagues to support candidates at rallies and other meetings or to make contributions.

Of course, the most common form of political expression by employees remains conversation. However, posting on social networking sites such as Facebook or Twitter (even during working hours) is becoming more common in the US workplace – so much so that one recent survey of large US companies reported that 8% had terminated an employee for using social media such as Facebook.

While these types of activities are not always harmful, conflicts can and do arise when an employee becomes particularly passionate about a certain candidate or political issue, especially if that employee is in a senior position. A well thought-out policy on political expression in the workplace can help prevent such disruptions, minimize friction and protect against potential employment law claims.

A common misconception about employer policies limiting political discussion at work is that such conversations are protected by the first amendment of the US constitution. In fact, the first amendment’s constitutional guarantee of “freedom of speech” protects individuals only against government action, not against action by private entities or persons.

Thus, private sector employers are not obliged to accord employees the same freedom of expression that the government must guarantee. Moreover, “political affiliation” is not a protected class under federal anti-discrimination and anti-harassment laws. State and local laws may provide more expansive rights.

But in any case, a complete ban on political speech is generally not advisable in the US. Rather, employers with US operations should consider a policy that limits political exchange to employees’ free time and that reserves work time for work.

Discrimination claims

Even if they do not explicitly prohibit discrimination on the basis of political affiliation, federal and state laws which proscribe discriminatory treatment and bar the creation of a hostile work environment on the basis of race, sex, national origin and religion could also be used to prohibit political activity that is construed as discriminatory or harassing by any person who is a member of a class protected by the anti-discrimination laws.

Election seasons, in particular, may bring up contentious issues that provoke strong opinions on race, sexual orientation, national origin and religion. One gubernatorial candidate was recently accused of hiring an illegal immigrant, and another was accused of making
homophobic comments.

Discussion of these subjects could easily lead to statements that some might construe as discriminatory or harrassing, especially when coming from a supervisor and followed by some type of perceived negative employment action, such as a mediocre performance review.

Such discussions could also lead to employee claims that a supervisor is favouring one employee over another on political grounds. Finally, employees who feel constrained from speaking their minds may raise discrimination claims as well. They may also raise claims under the National Labor Relations Act, which has been interpreted as permitting employees to engage in discussions about their terms and conditions of employment. US employers must walk a fine line when balancing these concerns.

A number of states and cities have their own laws protecting political expression from employer interference. A few states, like California, specifically make it illegal to discriminate on the basis of an employee’s political activity or affiliation. Other states (including New York) prohibit discrimination or discipline for lawful activities outside of work, including political activities, but this could potentially prevent an employer from controlling certain activities at work.

Employers are advised to seek legal advice to formulate a policy that limits political expression but does not violate these laws.

Steps to take

Most US employers recognize the benefits of allowing some freedom of expression in the workplace. Further, many US employees appreciate the ability to express themselves at work. A reasonably permissive environment may help to promote morale and retention rates. On the other hand, political activism can become a distraction and may make some employees uncomfortable, or lead to perceptions of favouritism. Visible demonstrations may not be acceptable at a business where there is contact with the public or where the company otherwise sees itself as needing to show political neutrality.

Employers with US operations are therefore advised to take the following steps to regulate political activity and minimize its potentially negative impact on the work environment.

• Consider a written policy that does not forbid political exchanges during free periods, but reserves work time for work and discourages political banter on paid time.
• Enforce uniform rules about employees’ personal appearance and work-area décor, making sure all employees are treated equally. For instance, workers who come into contact with customers can be prohibited from wearing political campaign tee shirts or buttons.
• Adopt and enforce a non-solicitation policy limiting the solicitation of support for and distribution of literature about various types of non-work activities, ensuring that they are applied to political campaigning. The rules should be applied in a uniform manner and should not be so broad as to prohibit protected activities.
• Adopt and enforce a policy dealing with workplace technology, including the restriction of e-mail to work-related activities and the employer’s right to access employee computers and email.
• Build sensitivity training specific to political expression into diversity training programmes.

Elise Bloom is a partner at Proskauer and co-chair of the firm’s global labour and employment department

Jeremy Mittman is an associate at Proskauer