• The Voice of the Worker: When Can Employers Prohibit Political Discussions in the Workplace?
  • September 3, 2004 | Author: John C. Lowrie
  • Law Firms: Ford & Harrison LLP - Denver Office ; Ford & Harrison LLP - Atlanta Office
  • The old adage that people should not talk about politics, religion or sex in a social setting is probably also good advice for discussions in the workplace. With the November elections rapidly approaching, and the electorate being split and highly energized, employers are well advised to know the do's and don'ts of disciplining employees who might "talk politics" in the workplace.

    As with politics, the laws applicable to curbing political discussions in the workplace are generally local. State laws vary on whether an employer can take disciplinary action against an employee for voicing political opinions in the workplace.

    In most states, workers are employed at will, which means that either party can end the employment relationship at any time, with or without cause, so long as the employee is not discharged for a prohibited or unlawful reason. Thus, in a state that has a pure at-will employment doctrine, an employer is free to discharge an employee who voices political opinions in the workplace.

    The complicating factor is that many states have significantly limited the at-will employment doctrine. For instance in Connecticut, private employees have first amendment rights that are similar to those held by governmental employees. In Connecticut, an employee who expresses a political opinion in the workplace cannot be disciplined for that opinion unless it "substantially or materially interfere[s] with the employee's bona fide job performance or the working relationship between the employee and the employer . . .."

    Several other states have limited the at-will employment doctrine by making it unlawful to discriminate against a person for engaging in lawful off-duty conduct. Although we often equate these "off-duty" laws to protecting smokers' rights, these laws also apply to political opinions expressed outside of the workplace. For example, in Colorado it would be unlawful for an employer to take an adverse employment action against an employee because he or she voiced a political opinion on his or her own time -- say for instance during a lunch break or while preparing for work. Although these laws, by their very name, only apply to conduct outside of work, employers in states that have such laws must exercise caution. For example, a crafty plaintiff's lawyer could claim that the reason given by an employer for discharging or disciplining an employee was pretext and that the real reason for the action was because the employee voiced a political opinion or otherwise participated in the political process on their own time.

    This is also true in states like New York, California, South Carolina, Louisiana, and Wisconsin, where specific statutes protect employees who participate in the political process or have political views or party affiliation.

    A final consideration regarding the expression of political opinions in the workplace is whether the employer is unionized. In a unionized workforce, employees who distribute handbills or other literature expressing an opinion about a political candidate who supports a particular union or the rights of unionized workers in general may be engaging in conduct that is protected by the National Labor Relations Act (the "Act").

    This issue has created serious dilemmas for employers who do not want to violate the rights of their unionized workforce but who nonetheless want to keep political distributions out of their workplace. In analyzing this predicament, courts must determine whether the distributed material falls under the purview of Section 7 of the Act.

    Section 7 guarantees employees the right to "engage in concerted activities for the employees' mutual aid and protection, such as the distribution of union material." Employees are protected "so long as [the distribution] is done in a nonworking area and during nonworking times." The Mead Corporation, Fine Paper Division v. McBrayer. For an employer to interfere with such activity would violate the Act's intent.

    However, the U.S. Supreme Court has held that "where the distributed literature is purely political or remotely connected to the concerns of employees, it may fall outside the protection of Section 7." Eastex v. NLRB. In making this determination, courts will examine whether the distributed literature is "so attenuated as to be deemed outside the scope of the mutual aid and protection clause." Eastex. Although each situation is fact intensive and must be analyzed individually, courts will consider certain factors when determining whether leaflets are purely political.

    Where the literature is "related to an election, supports particular candidates, and the content cannot be found to relate to the employee's problems and concerns it is deemed purely political." Mead, citing Firestone Steel Prod. Co. v. Local 174 International Union. In such a case, the literature does not fall within the confines of Section 7 because the content does not "bear a relationship to the employees' interests as employees" and the employer may then restrict the distribution rights of its unionized workforce. Eastex.

    In conclusion, whether from a red state, blue state, or purple state, an employer needs to know the applicable state law regarding political speech and participation, and should consider the nature of the speech if operating under a union contract.