This year’s presidential election has produced one of the most colorful and contentious political seasons in recent memory. It’s not surprising that employees want to talk about the candidates and the issues. For this reason, it’s important to know what everyone’s rights are – both those of employees who want to express their opinions, and those of employers who want to minimize disruptions and avoid having their staff members offend co-workers or customers.
While many people talk about “free speech,” it’s important to know that the First Amendment to the U.S. Constitution doesn’t protect every type of speech. All it really says is that the government can’t punish you for your speech. It doesn’t say that a private employer can’t punish people for their political opinions.
Further, while there are federal laws that prohibit discrimination on the basis of race, sex, age, religion, etc., these laws do not prohibit discrimination on the basis of politics, or say that people can’t be fired simply because their boss disagrees with their politics.
So, as far as federal law is concerned, employees have very little protection in general when they decide to express their views at work.
(It’s different if an employee actually works for the government, because then the First Amendment comes into play. In those cases, employees might have a right to “free speech” if they’re talking about a matter of public concern, but not if they’re simply expressing a private or personal grievance.)
You should know, however, that many states – and even some cities and towns – have laws that give workers more rights than they have under federal law.
In California, for example, state law prohibits businesses from trying to control workers’ political activities or affiliations. That means a boss can’t take negative action against a worker simply because of a political disagreement. A boss also can’t punish a worker for engaging in political activities, such as volunteering for a campaign, outside of work hours.
In Michigan, employers are prohibited from making direct or indirect threats against workers in order to influence their vote. And in the state of Washington, employers can’t retaliate against workers for refusing to support a particular candidate, party or ballot proposal.
Of course, employers still have the right to maintain a productive workplace. Even in California, a boss doesn’t have to tolerate an employee whose political activities are affecting his or her ability to do the job, or whose attempts to engage others in constant political discussions interfere with co-workers’ ability to do their jobs.
In most cases, it’s legal for employers to ban all political discussions or the posting of political materials in the workplace. But an employer who does so needs to enforce the ban consistently. If a boss punishes workers for posting material about one candidate but not another, this could violate a law like California’s.
Here’s another concern: Laws against discrimination allow employees to sue if they were subjected to a “hostile environment” at work because of race, sex, religion, national origin, and so on. Heated political discussions could lead to some employees feeling offended or harassed on these grounds – particularly this year, when the election features such hot-button issues as immigration, Islamic terrorism, abortion, and police brutality.
If a company has a union, the union agreement might also limit what an employer can do in terms of restricting political speech.
Even in companies that don’t have a union, federal labor law says that employees have a right to discuss working conditions with each other and talk about ways to improve their work lives. So if employees are having a discussion about which candidate would be better for them from an employment standpoint, this conversation might be federally protected, even if the business has banned talking about politics in general.
Also, companies are generally free to forbid employees from wearing political t-shirts, buttons, hats and the like, but they can’t forbid them from wearing union symbols. So if a worker wears a button noting that a particular candidate was endorsed by a union, this might have to be allowed.