Political Speech in the Workplace: Employer Controls & Actions

Here’s an unexpected reality for many employees: political speech—with a few notable exceptions—is not a workplace right. “Employers have the absolute right and prerogative to expect employees to refrain from engaging in certain forms of off-duty speech and off-duty conduct,” Labor & Employment attorney Fran Haas says.

More and more, employees speak out on political and social justice issues. Sincere, strongly held opinions cross a spectrum of viewpoints. Using company values and policies, employers must decide how to address political speech and conduct.

Federal and state statutes define four areas of protected speech in the workplace:

• Public employers
• National Labor Relations Act communications
• Whistleblower communications
• Anti-retaliation

Beyond these areas, an employer’s right to regulate speech and actions is wide-ranging. For example, employers might act if an employee takes a white supremacist position on social media that is inconsistent with company diversity policies. An employer also might act if they see an employee vandalizing property. But should they?

“Just because it’s fair game to regulate speech or activities doesn’t mean that you can do whatever you want,” Haas says. “You still need to make sure that whatever you’re doing is fair.”

For employers, “fair” means the ability to defend their conduct. “Ask yourself, will you be able to prove that you would have engaged in similar conduct for other employees who engaged in similar conduct?” Haas says. “This is oftentimes a more difficult question to answer than you might think.”

While employees are engaging in more political speech, comparable cases may be hard to find. “These issues aren’t so prevalent and ubiquitous that we have an easy time saying, ‘This employee did the same thing, and this is what we did. That’s what we’re going to do here,’” Haas says. “When you’re faced with a question of taking action against an employee who is engaged in political speech that we find offensive or that’s inconsistent with our company values, it may be the first time you’re considering the issue.”

As employers consider how to respond, Haas suggests considering these actions:

• Avoid selective monitoring of off-duty conduct or employee speech. “You do not want to have a supervisor who is really interested in what a certain employee is doing or saying outside the workplace and monitors their Facebook activity—especially when the supervisor cannot or is not monitoring anyone else’s social media activity,” she says. “That could be a problem.”
  
  
• Remind employees that expectations don’t end when they clock out. “Employees may need to be reminded that what you do outside work can matter here too,” Haas says. “That sometimes that reminder helps people modify their behaviors in a productive way.”
  
  
• Have a conversation with an employee who uses controversial speech. “Employees may not understand the extent to which their speech has an impact on others or may not understand how their viewpoints can be inconsistent with the company’s policies,” Haas says. “Perhaps educational efforts or training can help,” and “perhaps that employment relationship can be salvaged.”
  
  
• Respond to controversial speech. “What you can’t do is nothing,” Haas says. “Choosing to do nothing will be viewed as something. Some will view it as an endorsement of whatever policy or speech or position this employee has taken.”

Employers are likely to face more decisions about when to regulate speech or conduct. Decisions about disciplinary action will follow. “These are difficult decisions,” Haas says. “They’re difficult facts. You’re dealing with strongly held positions.” To be in position to deal with these decisions, employers should review company policies regarding speech and conduct. Then, make sure employees are aware of company expectations.

If you have questions about how to regulate or manage employee speech and conduct, contact your Nyemaster Labor & Employment attorney for advice and assistance.