Political discussions and arguments haven’t subsided following the election, and protests have continued across the country. Employers who want to keep their workers happy and prevent workplace arguments, hostilities, and even violence may wonder if they can just completely ban political discussions. Is it legal for an employer to prohibit employees from discussion politics in the workplace or during work hours? And what about attempting to police what employees do in their spare time related to politics, protests, or political organizations, or taking adverse employment actions against employees based on their personal social media posts? Is this a violation of your free speech protections, or is it allowable treatment of at-will employees?
Can My Employer Ban Political Discussions in the Workplace?
Generally, yes. Employers have a legitimate and lawful interest in ensuring that employees are productive and that political discussions or activities do not cause or threaten harm in the workplace, create a hostile work environment, or impede the normal operation of an employer’s business. In order to further these legitimate interests, employers may implement policies and rules restricting political speech or discussions. An employer can also prohibit political conduct, such as wearing buttons or political-themed clothing, displaying signs, campaigning for a candidate or issue, or urging coworkers to “vote for candidate X.” The First Amendment does not protect your right to express your opinions in a private workplace, so you can legally be disciplined for violating a policy restricting political speech.
There is one significant exception to this: the National Labor Relations Act (NLRA) protects discussions about the “terms and conditions of employment” by employees in the workplace. This may well encompass political topics like discussions of various candidates’ or politicians’ views on health care reform, insurance, equal pay, workplace protections, minimum wage, and other employment-related issues. So, if a button, clothing, sign, slogan, or political discussion refers to or revolves around a topic protected under the NLRA—e.g., “candidate X will protect your right to healthcare”—the speech or conduct may be protected. Employees who are disciplined or terminated for conduct protected by the NLRA may have a claim against their employers.
Another gray area is a situation in which an employee is fired or terminated for merely having certain political beliefs, e.g., for opposing the death penalty, for example, without committing any violation of a workplace policy restricting political expression. Many beliefs, however, are inextricably linked with membership in a protected class (e.g., religious objections to a political issue). If you have been disciplined or terminated because of your beliefs, you should contact an attorney to assess any potential recourse you may have.
Must Employers Police Workplace Political Discussions?
Employers have a responsibility to ensure that any political speech or discussions in the workplace do not create a hostile or discriminatory work environment for any employees or run afoul of equal employment opportunity and civil rights laws. Conversations about immigration rights, racial profiling, police harassment or violence, protests, or terrorism could lead to claims of discrimination or harassment against a supervisor based on race, religion, national origin, or ancestry. Conversations that discuss views on abortion rights, religious freedom, family leave laws, marriage equality, or healthcare rights could be deemed harassing or discriminatory to employees based on gender or religion. If an employee objects to illegal discrimination based on race, religion, sex, national origin, age, disability, pregnancy, or some other protected characteristic or status, he or she is protected against retaliation by Title VII, the federal law prohibiting discrimination, and the New Jersey Law Against Discrimination (NJLAD). Since political discussions can quickly devolve into heated conversations leading to these kinds of issues, employers should do their best to discourage employees from engaging in political discourse in the workplace at all.
Can I Be Fired for Expressing My Political Beliefs?
Employees of private companies generally have no protection against being terminated or disciplined because of their political views or activities, either within the workplace or outside of the workplace. Public employees like teachers, police officers, or other government workers may not be terminated or otherwise disciplined for political speech or activities, however (although they are prohibited from performing campaign activities while on the clock or using public resources).
A few states, including New York, have laws that prohibit discrimination or employer retaliation against employees based on their political affiliation or political activity they engage in outside of the workplace. New Jersey, however, is not one of them. Use caution when sharing your opinions in the workplace; recognize that engaging in activities like community protests may impact your employment; and be aware of what you post on your social media (especially if you are friends with coworkers or supervisors).
If you believe you have been the victim of workplace discrimination, harassment, or an improper adverse employment action based on your political beliefs, you should consult with an experienced labor and employment lawyer. The attorneys at the Mark Law Firm can help evaluate your case, protect your rights, and recover damages if appropriate. Contact us today to make an appointment at any of our convenient locations: Basking Ridge, Oradell, Newark, Jersey City, Paterson, or Union, New Jersey.