The upcoming election may have some employers wondering whether and to what extent they can prohibit or limit employee political speech.
Both employees and employers may be under the mistaken belief that employees have First Amendment free speech rights to express their opinions and say whatever they want in the workplace. Employers may conclude that they cannot limit or restrict employee speech. That is not the case in either the public sector or the private sector, although the speech rights of public and private employees differ.
Public Sector Employee Speech Rights
The First and 14th Amendments to the U.S. Constitution protect the free speech rights of employees of federal, state, and local governments. However, public employees’ speech rights are not unlimited. In Garcetti v. Ceballos (2006), the U.S. Supreme Court held that speech by public employees made as part of their routine job duties is not protected by the First Amendment.
On the other hand, speech by public employees made in their capacity as private citizens on matters of public concern is protected speech that a public employer cannot restrict. Thus, a balancing test must be applied. If an employee is speaking as a private citizen on a matter of public concern, a public sector employer may only restrict or prevent the speech if the employer’s interest in efficient operations outweighs the employee’s free speech rights. If heated political discussions are substantially interfering with employees’ work performance, a public employer may restrict or disallow the speech and discipline employees for interfering in the organization’s efficient operations.
Some forms of work-related speech may be protected by local law, however. For example, in Colorado, the Protections for Public Workers Act (PROPWA) provides rights to most public employees to engage in concerted activity and speak on work-related issues similar to the rights granted to private employees under Section 7 of the National Labor Relations Act (NLRA). PROPWA also gives public sector employees the right to speak on public issues and engage in political speech while off duty and not in uniform.
Private Sector Employee Speech Rights
Unlike public employees, private employees do not have First Amendment free speech rights at work. Indeed, private employers may prohibit certain types of speech in the workplace and discipline or even terminate employees for engaging in prohibited speech. For example, private sector employers may prohibit employees from engaging in divisive political speech or making sexist, racist, or other discriminatory comments or threating violence.
There are exceptions, however, that provide employees with free speech rights under specific circumstances. For example, the NLRA provides employees with the right to engage in concerted activity for their mutual aid or protection. This includes the right to discuss the terms and conditions of employment, including pay, with coworkers. Federal and state whistleblower laws give employees the right to talk about possible unlawful conduct in the workplace. And Title VII of the Civil Rights Act of 1964 and other federal and state laws, such as the ADA (disability), ADEA (age), USERRA (military), GINA (genetic information), and OSHA (safety), give employees the right to complain about harassment, discrimination, and workplace safety violations.
Whether an employer can restrict employee speech on a particular matter is legally complicated. In this election year, employers can expect discussions over divergent political and social topics to occur in the workplace. If you are an Employers Council Consulting or Enterprise member with questions about how to handle these potentially disruptive discussions, please contact us for guidance.
Our 2024 conference, Clarity in Action (September 5 and 6), includes a session to further explore this hot topic from a legal and HR perspective to provide clear guidance on maintaining organizational effectiveness.
Barbara Bagdon is an attorney for Employers Council.