Free Speech in the Workplace at Election Time
Posted by Michael D. Haberman
As the U.S. presidential election nears, it is almost impossible to get away from talk about politics, whether you’re watching the news on TV, listening to the radio, reading the newspaper, checking your Facebook feed, having conversations on the street corner, or even at work. Some people revel in these discussions and others try to avoid them as much as possible. As a consultant, I often get asked if an employer can ban political discussions at work or whether such a ban would restrict the employees’ Constitutional right to freedom of speech or freedom of expression.
Between the Government and You
As it turns out, in the private sector, an employer can prohibit employees from talking politics or campaigning for any particular candidate, with some exceptions.
The First Amendment says that:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
This has been taken to mean, after many court cases, that the government cannot control freedom of speech, again with some exceptions. But there are no laws against a private sector employer putting limitations on what an employee can talk about on the job. Although some employees may claim, when they’re being disciplined or fired for something they’ve said, that it always falls under their “right to free speech,” they are incorrect. Under the First Amendment, they are protected from action by the government in response to things they say about the government. But they are not protected from action by their employers in response to things they say about their employers.
Even the U.S. Government puts some restrictions on free speech, to cover such things as subversive language, “fighting words,” obscenity, and pornography. However, the U.S. Supreme Court’s take on the First Amendment is very guarded about these restrictions, and it interprets the Constitution broadly. As the Court said in one case, “One man’s vulgarity is another’s lyric.”
Workplace Restrictions on Employers
An employer’s right to restrict an employee’s free speech does have some limitations, as mentioned above. The National Labor Relations Act prohibits employers from restricting the right of free speech when employees are discussing wages, hours, and working conditions. This is where many companies have gotten into trouble when they discipline or fire employees for comments made about their work on social media sites like Facebook. An employer can get into trouble for disciplining someone for talking about a particular candidate if their reason for supporting that candidate was the candidate’s position on wages, improving work laws, or promoting union activity. However, expressions about the candidate’s views on such things as refugee policies are not protected. And the National Labor Relations Act does not extend protections to all employees. Supervisory, management, and other advisory personnel, such as HR, are not covered by this law.
The EEOC, OSHA, and the Department of Labor also have some safeguards on “free speech,” to the extent that employees are protected from acts taken by their employers that could be perceived as retaliatory. An employee who complains about an unsafe condition or an act of discrimination and ends up with some adverse job action, such as termination, for what they said or reported, could sue for reinstatement or compensation for that adverse job action. With the increasing government attention today on retaliation (it is the fastest growing area of discrimination claims under EEO), employers are being more careful in their responses to employee complaints and reports.
The Street Goes Both Ways
While employees are protected in some aspects under Freedom of Speech, employers have some protection as well. Employers can talk about their political views, although they cannot coerce employees to vote a certain way or punish those who don’t bend to their will. According to writer Allison Green in U.S. News and World Report:
“However, ‘following the Supreme Court’s 2010 decision in Citizens United, employers have a greater ability to communicate their political views and preferences to employees, and spend money to support a candidate, as long as that is not coordinated with a political campaign.’… That means that you might be stuck hearing about your employer’s politics, but you should be free to ignore those communications if they don’t interest you.”
What to Do
So what happens if you are stuck listening to fellow employees talk about their political views, and it makes you uncomfortable? The best advice is to ignore them. Tell them you’re not interested in talking politics at work. If there is a policy against political speech in the workplace, remind them of that, and if they continue, you can consider reporting them. Don’t allow yourself to be abused, but at the same time, recognize that the U.S. Supreme Court says you can choose to just ignore it. If you realize that your fellow workers’ opinions will not be altered by yours, nor yours by theirs, you can be the wisest person in the room by deciding to opt out of these conversations.
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Michael D. Haberman is Vice-President and co-founder of Omega HR Solutions, Inc., a consulting and services company offering complete Human Resources solutions. As the former founder and President of MDH Consulting, a Human Resources consulting firm, Mike has more than 35 years of experience in Human Resources, and he uses his broad-based background to help companies solve employee problems and deal with governmental compliance.