In 2024, politics seems to be on everyone’s mind. Between the upcoming elections and the continued coverage of highly charged social issues, there’s no shortage of public opinion, and people seem more comfortable than ever sharing their political views at the office or, these days, on Zoom or Google Meets. The question is, is discussing politics in the workplace legal? There seems to be no escaping politics, whether you’re listening on the radio, watching TV, or scrolling social media. And I’m here to break down the rules governing the world around the water cooler.
My passion is educating the public on the employment law and workplace issues that matter to them most. This is an issue that has a huge impact on both employees and employers. So, let’s dive in!
Is Talking Politics at Work Illegal?
Discussing politics in the workplace is not inherently illegal. But it all depends on where you work and the context in which these discussions occur. Many people believe that the First Amendment can be broadly applied to all situations.
However, this right to free speech only protects employees from government actions against them. Imagine you are walking to work and are wearing a shirt with a political slogan on it, and a police officer tried arresting you for it.
Such action potentially violates your First Amendment rights. But as soon as you clock in, things change. Your workplace could possibly take disciplinary action against you for the same reason, depending on the circumstances and workplace. It’s not uncommon for employers to formally prohibit:
- Expressing support for your preferred candidate or cause or your contempt for one.
- Wearing buttons, hats, or other apparel promoting a candidate or cause or displaying stickers, signs, or other paraphernalia promoting a candidate or cause.
Still, employers must understand that they have limitations, too. Under federal law, it is illegal for employers to coerce employees into contributing to a political campaign or political action committee.
Generally speaking, there are few situations where there’s such a right to free speech in a private workplace, and most of these rights don’t usually apply at work. This is especially true if you work for a company that has explicit policies against discussing politics in the workplace.
See My Prior Blog on This Topic: Politics and Work: Should They Mix?
What to Know About Discussing Politics in the Workplace
It’s crucial to understand some things related to talking politics at work. As always, there are exceptions where an employer cannot fire or take disciplinary action against you for discussing politics at work. Let’s examine a few situations that would be considered exceptions.
Your Political Talk is a Part of a Protected, Concerted Activity
Concerted activity refers to two or more employees taking actions to help or protect each other concerning employment conditions or terms of employment.
The National Labor Relations Act protects political workplace speech by non-supervisory employees if such speech relates to the “terms and conditions” of employment. This is key to understanding when it comes to discussing politics in the workplace.
For example, if you are a woman working for a private employer expressing to co-workers how you believe a political candidate’s proposed law would address paycheck inequities you have observed and reported in your workplace, this speech could be protected.
Just as importantly, the National Labor Relations Board has an expansive view of what is protected and what is concerted.
This was common during the Black Lives Matter movement, where companies wanted to ban employees from wearing anything that said Black Lives Matter. There was a case involving Home Depot that allowed an employee to write “BLM” on their work uniform because, in that situation, it was ruled that this amounted to a protected activity.
For employers, this is imperative to understand: it’s incredibly risky to assume something is not considered a protected activity. So, always consult an employment law lawyer before firing or taking disciplinary action against an employee for engaging in political speech or protest.
Your Employer’s Actions Affect Specific Protected Classes of People
Another exception regarding discussing politics in the workplace could be if your political talk affects a specific class of people.
Imagine, for example, that your employer has a policy that prohibits political speech, and an employee is Black, which is a protected group. They want to wear Nike clothing supporting former quarterback and Civil Rights activist Colin Kaepernick.
If the only people wearing this clothing are Black people, they could argue that enforcing this rule has a disproportionate and unfair impact on a protected class and violates Title VII. This could even result in a discrimination case.
There’s a State or Local Law that States Otherwise
Another exception to be aware of regarding discussing politics in the workplace is when state or local laws say employees can engage in political talk at work. So, even though federal law does not protect this, it could be protected by specific state or local laws.
Your Employer Is a Public Entity
Lastly, if an employer is a public entity, like a city, county, or school district, this could also change the dynamic, though this depends on several factors. A 2006 Supreme Court decision in Garcetti v. Ceballos set an important precedent.
The Supreme Court maintained that public employees who make statements pursuant to their official duties are not entitled to the same free speech rights as private citizens.
Essentially, a public entity cannot fire an employee on a basis that infringes on an employee’s constitutionally protected freedom of speech as a private person. However, it can if an employee is engaging in such speech in the course of the employee’s public duties.
This case laid out a four-factor test for those claiming a violation of their First Amendment rights. Employees would have to prove:
- The speech in question was not pursuant to their official duties.
- The subject of the speech is a matter of public concern.
- Their interest in commenting on the issue outweighs the potentially disruptive effect of the speech.
- Their speech was a substantial or motivating factor in the adverse action, such as a termination or demotion, taken against them.
What’s the Verdict on Discussing Politics in the Workplace?
You don’t lose your right to free speech when you speak as a private citizen about matters of public concern, even if it involves something you learned at work. But when you clock in and act in your official capacity, you generally lose these rights, barring exceptions.
Ultimately, talking politics at work is not advisable for employees. Not only can discussing politics at work be polarizing and significantly impact overall productivity, but navigating the employment laws that govern this kind of speech can be complex. Failing to understand this could put you at risk of facing punishment and even losing your job.
Still, employers should always work with an attorney before terminating, demoting, or censoring someone for discussing politics in the workplace. States and counties can have disparate laws that protect employees, and failing to do your due diligence before you act can expose you to discrimination lawsuit.
Thought Leader, Media Personality, Professional Speaker, & Legal Commentator on Discussing Politics in the Workplace
Understanding the laws revolving around talking politics at work is crucial for both employees and employers. For employees, it is essential to have a grasp on your protections; for employers, this information could help protect you from discrimination lawsuits. As a thought leader and legal commentator on the nuances of discussing politics in the workplace and all aspects of employment law, I am uniquely positioned and qualified to provide expert insight and analysis on all employment law issues. These issues can be complex, so you need a seasoned legal professional to shed light on them. My passion is being a beacon in uncertain times of transition that provides that light.
Employment Law Thought Leader & Professional Speaker on Discussing Politics in the Workplace, Employment Law Trends, and Breaking Employment Law News
In the current climate, understanding the nuances of whether or not talking politics at work is advisable or even legal is crucial for employees and employers alike. I am a former employment and labor law attorney turned mediator, ADR, and conflict resolution specialist who believes it is crucial to stay current with groundbreaking changes to employment law for employees and employers alike. My passion is educating the general public on recent developments in employment law and the workplace trends that impact them as a thought leader and legal commentator. As such, I am uniquely qualified to address the issue of discussing politics in the workplace. My more than 20 years of experience as a media legal analyst and contributor led to my radio show on Tavis Smiley’s KBLA Talk 1580, “Legal Lens with Angela Reddock.” I also am a regular speaker and blogger on employment law and issues related to the workplace.
Also, learn more about my book – The Workplace Transformed: 7 Crucial Lessons from the Global Pandemic – here – https://angelareddock-wright.com/book/.
For media inquiries, please reach out to josh@kwsmdigital.com.
For more information regarding mediation and dispute resolution resources for both employees and employers, let’s connect on LinkedIn for new updates or contact me here. You may also follow me on Instagram.
This communication is not legal advice. It is educational only. For legal advice, consult with an experienced employment law attorney in your state or city.