Countdown to Election Day: Navigating Political Speech in the Workplace

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As we quickly approach Election Day in November, political discussions can dominate daily life, including in the workplace.  Employers are often faced with the question of how to handle employee political speech in the workplace, particularly when that speech involves polarizing political views.  In addition to practical concerns about employees getting along, employers should remember legal considerations related to employee political speech in the workplace.  Knowing the applicable rules is the first step for employers to get their workforce through this election season. 

When discussing issues related to speech, the First Amendment to the U.S. Constitution is often the first source of law that comes to mind.  However, the First Amendment prohibits government actors from restricting an individual’s speech, with some limitations, and does not generally apply to private employers.  While private employers may have more leeway to place limitations on employee political speech in the workplace, employers should be aware of the federal and state laws that may protect employee political speech.  So, what laws come into play for employers?

• National Labor Relations Act: Section 7 of the National Labor Relations Act, or NLRA, allows non-supervisory employees “to engage in concerted activities for purposes of mutual aid or protection.” This provision protects an employee’s ability to do things like talk to other employees about working conditions and compensation.  Some political discussions may trigger NLRA rights, like discussions about discrimination or minimum wage increases.  In recent years, the General Counsel for the National Labor Relations Board, or NLRB, has suggested that an employee’s political or social justice advocacy is protected by Section 7.
• Federal EEO Laws: Certain EEO laws may also come into play.  “Political affiliation” is not a protected characteristic under federal laws like Title VII of the Civil Rights Act of 1964.  However, employees may express opinions in the workplace that are couched as “political beliefs” but which may be perceived as hostile to another group, such as if the discussion involves race, sexual orientation, religion, or any other similar protected category.  Those discussions may contribute to an employee’s hostile work environment claim. 
• NLRB’s “Captive Audience” Memorandum: “Captive audience” meetings are meetings in which an employer convenes a meeting during working hours to educate employees on certain topics, including things like political matters. In 2022, the NLRB’s General Counsel issued a memorandum stating that captive audience meetings violate the NLRA.  While NLRB precedent to the contrary has not been overturned, this memorandum suggests that the NLRB will take action toward employers holding meetings concerning political matters. Further, some state laws prohibit employers from taking adverse action against employees who refuse to attend such meetings.  For example, California recently passed a law scheduled to take effect on January 1, 2025, which bans captive audience meetings.
• State laws: At least 11 states have laws prohibiting employers from disciplining or restricting employees from expressing political affiliations or views, including some states with protections for off-duty conduct like participating in political demonstrations, campaigning, and voting. Some states, like Connecticut and California, provide broader protections to employees, and Connecticut extends First Amendment protection to employee speech, even if the employer is not a government actor. 
• Social Media Considerations: Social media platforms provide additional outlets for employees to express political opinions.  At least 26 states have social media privacy laws that prohibit employers from accessing an employee’s non-public social media posts.  Section 7 of the NLRA may also come into play if the subject of the employee’s post can be considered to be seeking mutual aid or protection.  Employers should be mindful about accessing, or taking any action relating to, an employee’s social media post.

Best Practices for Employers

• Be prepared. Employers should not wait until a problem arises before developing plans and policies to address employee political speech in the workplace.  While handling employee political speech in the workplace can seem daunting, employers should not shy away from being prepared. 
• Review internal policies for compliance with applicable laws. Employers should consider creating policies and/or reviewing existing policies which cover political speech in the workplace.  Such policies can serve as the first line of communication to employees to convey the employer’s expectations about maintaining a respectful workplace.
• Ensure consistent application of internal policies. Once a policy is in place, employers should apply that policy consistently across the workforce, regardless of an employee’s political affiliation or any other characteristic.
• Train leaders, management, and HR staff about applicable policies. Employers should ensure that leadership is prepared to handle situations related to employee political speech as those situations arise.
• Communicate with employees. Employers should establish clear lines of communication with employees in order to encourage respectful dialog despite differing viewpoints.  These communications are not limited to an election year and can foster a positive workplace culture.  
• When in doubt, consult outside counsel!

For additional information about employee political speech in the workplace, contact any member of Maynard Nexsen’s Employment and Labor Law Team.