Restricting Employee Political Speech and Activities: What to Know

This month features a conversation with Tripp Scott Director and COO Paul Lopez

Can – and should – employers establish restrictions on political speech and activities at work during an already contentious 2024 election campaign in a deeply divided country?

The law and common sense say “yes” – and “maybe” – depending on the situation. Let’s delve in.

Bill Davell: Why would employers want to put limits on political speech and activity?

Paul Lopez:  Four highly legitimate reasons: first, to maintain civility and comity in the workplace. Second, to keep the focus on work. And third and fourth, to protect the company’s brand and reputation and shield it from legal liabilities such as charges of allowing a hostile workspace.

Bill Davell:  Is it legal to do so? Doesn’t the First Amendment protect employees?

Paul Lopez:  In most cases involving private employers, it is legal. And specifically, unless a government employer is involved, First Amendment protections for political speech don’t apply to private workplaces. Employers in most states – including Florida – generally have the right to restrict employees’ political speech, absent contractual agreements, both in the workplace and outside it (think social media), or more precisely, to discharge employees whose speech they don’t like. 

Because Florida is an “at-will” employment state, which means that, with limited exceptions, employers can actually terminate workers’ employment at any time for any reason.

Bill Davell:  You write “in most cases?” What legal issues might employers have to watch out for in restricting speech, displays or activities? 

Paul Lopez:  One issue: Florida statutes prohibit employers from firing workers for either exercising their right to vote or refusing to do so. Also, under the National Labor Relations Act, employees have the right to discuss publicly the terms and conditions of their employment. The Supreme Court has held that this provision may cover some political activities – such as urging people to contact elected officials.

In addition, restrictions on or disciplinary action for political speech might in some cases be seen as retaliation against an employee who has reported company misconduct or illegalities, which is illegal. It’s also illegal to retaliate against an employee exercising the right to family leave.  

Finally, employers should make sure that any political restrictions don’t look like discrimination on the basis of race or sex, which could be a real concern in an election in which both could especially be seen as major issues.

Bill Davell:  Wouldn’t restrictions on employee speech upset employees and hurt morale?

Paul Lopez:  Actually, some research says the opposite – that employees might welcome a politics-free work environment. At least that’s the impression left by a survey of 1000 U.S. workers commissioned by a provider of resume and career resources, which found that 51% of respondents never or rarely discuss politics at work and that the same percentage believe workplace political discussions hurt the work environment. In fact, a quarter of respondents have actually quit because their bosses favored certain political views. 

Bill Davell:  So what are reasonable actions employers might consider to minimize workplace politics?

Paul Lopez:  Anticipate: Take the time to think through and address all the scenarios in which contentious or damaging political speech might arise; for example, outside centralized workspaces in communications or interactions involving increasingly prevalent remote work.

Equate: Establish clear guidelines that apply to everyone, no matter their politics.

Communicate: Make sure employees understand those guidelines and that any restrictions are designed to protect both the company and them, not punish them.

De-escalate: Making mechanisms available to resolve political conflicts that may arise can protect against escalation that could give rise to charges of a hostile workplace or retaliation or drive away potentially valuable employees.

Last of all, corroborate: It’s always a good idea to run workplace guidelines of any kind, but especially those involving such a sensitive and personal subject, past legal counsel to review for any potential pitfalls.