Talking Politics at Work: Not So ‘Free Speech’ Says Midtown Attorney

With a presidential election on the horizon, it seems everyone has a political opinion. But, can discussing politics around the office water cooler raise any legal concerns? The simple answer is yes, according to Terri Stewart, attorney with the Midtown law firm of Fisher & Phillips LLP, located at 1075 Peachtree Street. 

A recent study showed that 35 percent of bosses openly share their political views with employees. Another study by the AFL-CIO concluded that 8 percent of employees believe that it would be illegal for their employers to terminate them for engaging in political expression at work.

“In reality, that 8 percent of employees are wrong, and their bosses may be violating company policy too,” Stewart said in a news release.

So, how can so many employees hold such a wrong opinion about their speech rights?

“The answer is a lack of understanding about the constitutional guarantees of freedom of speech and of the protection of employee speech under the National Labor Relations Act,” she said.

The First Amendment of the U.S. Constitution guarantees freedom of speech for individuals, corporations and unions. However, the First Amendment applies only to state action – that of federal, state, or local governments and some quasi-governmental entities. The protections of the First Amendment do not apply to private employment, Stewart explained. Moreover, while the speech protection of the National Labor Relations Act does apply to private employers, the protections are generally limited to situations in which two or more employees are discussing the terms and conditions of employment (not political activity).  

“Employees do not have a right to engage in purely political activities at work under federal law,” she said. “Private employers may regulate or even forbid political activity in the workplace.”

For instance, an employer can restrict an employee’s political activity during work time by prohibiting activities that interfere with the work of that employee or others. An employer may also prohibit political displays, as well as restrict the use of company email, cell phones or computers for political activity.

According to a 2008 survey by the Society for Human Resources, more than one-third of surveyed employers maintained written or unwritten policies governing political activities in the workplace.

A handful of states—including California, Colorado, New York, and North Dakota—protect employees from discharge based on political expression or lawful, off-duty activity, but most states do not, Stewart said. If an employer is doing business in a state without such a law and concludes that an employee’s conduct outside of the workplace conflicts with the company’s culture, values, or policies, the employer may have the right to discharge the employee. 

“Employers also need to be aware of issues surrounding their own political activity as well, such as solicitation for political contributions and visits by candidates,” she said.

For instance, under federal election laws, employers can express their political views to the general public through a press release or press conference distributed to media contacts. However, there are constraints on advocacy and solicitation directly to employees.

“So, although it may be tempting to discuss the upcoming election around the water cooler, or even visit your favorite candidate’s Facebook page at work, think twice before clinging to the right to free speech,” Stewart said.

- Fisher & Phillips LLP represents employers nationally in labor, employment, civil rights, employee benefits and immigration matters. The firm has 275 attorneys in 27 offices. Founded in 1943, it is one of the largest U.S. law firms to concentrate its practice exclusively upon representation of employers in labor and employment matters.