Employment Law Update: Political Speech in the Workplace
Date: October 10, 2024
By:
Caitlin E. Tobin
Employers may exert some control over workplace political speech because the First Amendment’s protections apply only to regulation of speech by the government and not by private employers. Employers’ regulation of speech, however, is limited by other means, including, but not limited to, the National Labor Relations Act, anti-discrimination laws (some of which expressly protect political opinion), “captive audience” laws, and off-duty conduct laws.
It is important, therefore, to be mindful when crafting policies and enforcing them. As a starting point, employers should consider the following:
- Policies governing political expression in the workplace should communicate the expectations for employee conduct and the consequences for failing to abide by them.
- Make sure employees know and understand the policies. Include them in your Employee Handbook and/or policy repository and provide training.
- Ensure the policies are enforced consistently. Employers can – and should – discipline employees for speech and/or conduct that violates their policies, such as harassment, discrimination, retaliation, and workplace bullying but must avoid selectively disciplining employees for certain political speech.
Now is a good time to review your policies for clarity and compliance with applicable law and ensure your supervisors are up-to-date in their understanding. Please reach out to any Whiteford Labor and Employment attorney with questions about your policies or their enforcement.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.