Political Arguments at Work
Part Two: Federal Laws Protecting Employees

NLRA Protections of Political Speech

The National Labor Relations Act (NLRA), which applies to both unionized and non-unionized non-supervisory employees, is a federal law that protects employees who engage in concerted activities for purposes of mutual aid or protection.

The U.S. Supreme Court has interpreted “mutual aid or protection” to mean that employees may organize as a group to “improve their lot” outside the employer-employee relationship. The NLRA restricts an employer’s right to limit non-supervisory employees’ communications about wages, hours and other terms or conditions of employment.

Therefore, if a protest or rally is considered protected concerted activity, the employer would be prohibited from taking adverse action against participating employees for engaging in such activity.

NLRA protections generally apply only to circumstances where the political speech or conduct

1. is concerted;
2. there is a close nexus between the political expression and employment; and
3. it involves terms and conditions of employment under the employer’s control.

Political discussions may trigger NLRA rights when they relate to employment issues, such as discrimination or minimum wage increases.

Additionally, enforcing restrictions during non-work time (such as breaks) or in non-work areas (such as break rooms) may violate the NLRA.

Additionally, the National Labor Relations Board (NLRB), the federal agency responsible for enforcing the NLRA, has recently dramatically expanded the concept of “protected concerted activity” to include employee advocacy on behalf of individuals who are not “employees” as defined by the NLRA, including individuals employed by another employer.

NLRB General Counsel Jennifer Abruzzo acknowledges that she wants to expand the scope of protected concerted activity to include social justice and certain “political statements,” such as writing phrases in support of political and social causes on company uniforms.

Former NLRB Acting General Counsel Peter Ohr, who now serves as the NLRB’s Deputy General Counsel, laid the groundwork for the NLRB’s “vigorous enforcement” of protected concerted activity as it relates to employees’ participation in social justice activity in the workplace. In a 2021 memorandum, Mr. Ohr noted that “under the framework of the law as presently articulated, cases involving retaliation against concerted employee conduct will be vigorously pursued, where these and other factors exist to tie workers’ protests to their interests as employees.”

Mr. Ohr argued that “[g]oing forward, employee activity regarding a variety of societal issues will be reviewed to determine if those actions constitute mutual aid or protection under Section 7 of the Act.”

To illustrate, Mr. Ohr suggested that the NLRB could take the position that “employees’ political and social justice advocacy” is protected by the NLRA “when the subject matter has a direct nexus to employees’ ‘interests as employees.'”

EEO Laws & Politics in the Workplace

Politics in the office can also trigger equal employment opportunity (EEO) laws.

Even though no general federal law prohibits employment discrimination because of political affiliation or activity, political conversations at the workplace can potentially lead to claims of employer discrimination, harassment, and retaliation, which may violate federal, state, or local anti-discrimination laws.

For instance, if the political discussion involves race, color, sex, sexual orientation, gender identity, national origin, religion, age, or disability, anti-discrimination law claims could arise. Employees might allege that an employer’s action in response to a political discussion is evidence of, or serves as a proxy for, illegal employment discrimination.

Further, although political speech is not covered by Title VII, companies may violate the law if a negative employment action is shown to be based on a protected characteristic or if they react to political speech differently based on a protected characteristic.

Litigation asserting such claims could become more common in the wake of the U.S. Supreme Court’s recent decision in Muldrow v. City of St. Louis, No. 22-193 (Apr. 17, 2024), which makes it easier for plaintiffs to bring workplace discrimination lawsuits under the lower standard established by the Court.

Still, the EEOC is clear that Title VII requires that the alleged harm be based on a protected characteristic. In the EEOC’s recently updated harassment guidance, the agency stressed that “[i]f an employee experiences harassment in the workplace but the evidence does not show that the harassment was based on a protected characteristic, the EEO statutes do not apply.” To illustrate this point, in a footnote, the EEOC cited Tademe v. Saint Cloud State Univ., 328 F.3d 982, 991 (8th Cir. 2003), where the court held that the employer was entitled to summary judgment because the evidence showed that harassment was based on inter-departmental politics and personality conflicts rather than a protected characteristic.

Employers may encounter a dilemma in complying with both the NLRA and EEO laws, as the NLRB has chosen to protect as concerted activity employee speech and actions that some other employees would find harassing or discriminatory.

Tensions between enforcement of the NLRA and anti-discrimination laws have not yet been addressed by agreements between enforcement agencies or departments. Inter-agency and intra-agency agreements are generally unenforceable, non-binding agreements signed between various agencies that clarify agencies’ respective jurisdictions, assign regulatory tasks, and establish ground rules for information-sharing, investigations, training, public outreach, enforcement, and other informal arrangements.

Ultimately, greater collaboration between the NLRB and EEOC in the near-term is highly likely, especially a possible joint enforcement memorandum on protected concerted activity.