Maintaining Civility Post-Election

Election season is officially over, but the tension surrounding discussions about the candidates and the issues in American society is unlikely to end soon. 

That tension is extending beyond dinner tables and social gatherings—it’s infiltrating the workplace, where most American adults spend a significant portion of their day.

The Society for Human Resources Management (SHRM) estimated that U.S. employers were losing $1.2 billion a day in worker productivity due to workplace incivility.

When that “incivility” arises from political disputes, the topics can range into territory that doesn’t just make the workplace uncomfortable, but also has the potential to create employer liability for allegedly creating a hostile work environment or taking adverse actions based on protected traits like race, gender, gender identity, and religion.

Understanding Employee Free Speech in the Workplace

One of America’s foundational principles is the right to free speech, and many workers and employers struggle to understand how that right applies in the workplace. Exercise of the right to free speech comes with responsibilities, and employers are authorized to take reasonable action to address worker speech or conduct (Speech) that could disrupt a healthy workplace environment and to make and enforce policies that ensure professionalism and respect in the workplace.

This two-part article outlines current legal protections for employees’ Speech, focusing on political speech and activity in CA, NY, MD, VA, and DC and offers some best practices for employers post-election.

Federal Protection of Employee Speech

Many private-sector employees mistakenly believe that the First Amendment limits their employers’ ability to tell them what Speech is appropriate and to punish them for Speech the employer deems inappropriate within the workplace or while using employer-controlled devices.

However, employees of private companies do not have a constitutional right to free speech at work or while using employer-controlled devices because the First Amendment only applies to attempts by the government to restrict Speech. Thus, government employees or contractors have some First Amendment protections, but private-sector employees do not enjoy those same protections.

Federal law protects some employee Speech, but only in limited contexts. For example, the National Labor Relations Act (NLRA) protects employees—in unionized and nonunionized workplaces—from adverse treatment because they choose to engage with their colleagues in discussions about the terms and conditions of employment (often referred to as “protected concerted activity”).

To be protected under the NLRA, the Speech must involve more than one employee and bear a “sufficiently close relationship” to the employees’ terms and conditions of employment (e.g., wages, hours, etc.). (Auto Workers Local 174 v. NLRB, 645 F.2d 1151, 1154 (D.C. Cir. 1981)). For example, statements by non-supervisory employees advocating for a law requiring paid family leave may qualify for protection, but complaints about a candidate’s position on foreign policy likely would not.

Employees also have the right to discuss and address possible unlawful conduct in the workplace, such as harassment, discrimination, workplace safety violations, and other issues under various federal laws. However, those same laws require employers to ensure the workplace is free from potentially racist, sexist, or discriminatory comments.

In summary, federal law prohibits employers from preventing or punishing employees for engaging in Speech that would be considered protected activity under a relevant statute.

However, employers are entitled to adopt and enforce policies addressed to Speech that could disrupt a healthy workplace environment and to take action when employees engage in Speech the employer believes in good faith is a violation of its policies, even if the Speech is political.