Retaliation -- Political Activity
Political speech and activity, especially in private sector employment, is not well protected by anti-retaliation laws. If you’ve experienced retaliation or discrimination at work because of your political beliefs or speech, the law may protect you. Your political activity is protected if you are a government employee, or if you are employed in one of the states or cities that protect private employees from retaliation of this sort. Read below for more information about the state of the law in this area, whether you are protected, and what activities may be protected.
Most employees of private companies do not have legal protection against discrimination based on political affiliation or activity. A public employer may be prevented from firing someone based on political speech because that would constitute the government itself suppressing free speech.
The following states ban discrimination based on some form of political activity:
- Colorado, North Dakota, and Utah prohibit discrimination based on “lawful conduct outside of work.”
- Montana is the only state that bars employers from firing people without good cause. Additionally, the good cause must be job-related. Failing to perform job duties satisfactorily is an example.
- Connecticut prohibits discrimination based on the rights guaranteed by the First Amendment. The state applies the same rules to private employers that are applied to public employers under the First Amendment. For private employers, the activity must not substantially interfere with the employee’s job performance.
- New York prohibits discrimination for off-duty “recreational activities” such as arguing about politics at a social event.
- California, Colorado, Guam, Louisiana, Minnesota, Missouri, Nebraska, Nevada, South Carolina, Utah, West Virginia, Seattle (Washington), and Madison (Wisconsin) prohibit employers from retaliating against employees for engaging in “political activities.” It is important to check with your specific state because what activities are defined as political varies between states. For example, in California, courts have held that advocacy of forcible or violent conduct does not qualify as “political” within the terms of the statute.
- New Mexico prohibits employers from discriminating based on “political opinions.”
- Washington D.C., Utah, Iowa, Louisiana, Puerto Rico, Virgin Islands, Broward County (Florida) and Urbana (Illinois) prohibit employers from discriminating against employees based on party membership.
- Illinois, New York, and Washington prohibit employers from discriminating against employees for election-related speech and political activities.
- Arizona, Washington D.C., Georgia, Iowa, Minnesota, Missouri, Ohio, Oregon, and Washington prohibit employers from discriminating against employees who have signed initiatives, referendums, recalls or candidate petitions. For example, in these states, an employer would not be able to retaliate against someone for signing petitions supporting certain initiatives such as anti-same-sex marriage or same-sex marriage.
- Louisiana, Massachusetts, and Oregon prohibit discrimination based on contributions to a specific campaign.
Since unions and their members are also very politically active, many standard union contracts include prohibitions on political activity discrimination, and some employers have also chosen to include this type of discrimination among the categories prohibited in their company's anti-discrimination policy disseminated to employees.
On April 26, 2016, in Heffernan v. City of Paterson, the Third Circuit held that if an employer demotes an employee out of the desire to prevent that employee from engaging in protected political activity, the employee is entitled to challenge that unlawful action under the First Amendment and Section 1983 even if the employer’s actions are based on factual mistake about the employee’s behavior.
If you live in one of these states or have a union contract, and you have suffered political activity retaliation, you should consult with an attorney or your union to learn more about any protections that may apply to you.
Maybe. If the program receives funding under the Workforce Innovation and Opportunity Act (WIOA), then yes, that was illegal. Under the WIOA, any program or activity that receives money from the WIOA cannot discriminate against anyone based on race, color, religion, sex, or political affiliation or belief.
running for public office,
campaigning for a candidate for public office, or
participating in fund-raising activities for the benefit of a candidate, political party or
political advocacy group
Your state law may be different, so you may want to consult with an attorney to learn more about any protections that may apply to you.
Another example is Colorado's conflict of interest provision. The Court held that where an employee wrote a letter to the local newspaper criticizing his employer, he was not protected under the anti-retaliation law.
In 2012, a coal mining company coerced their employees to attend a presidential candidate's rally by telling the employees it was mandatory. The employees were not paid that day because the mine was shut down for the rally. The employer was ultimately not punished because attendance was not technically mandatory. So, the Federal Election Commission was okay with the tactics used by the company. Clearly, more legal protection is needed to allow workers to express political views safely.
Wise employers will recognize the positive effects that unrestricted political engagement can have for employees, including improved morale, increased socializing, and the possibility of benefiting the company's business through connections established in political groups. If your employer does not respect political differences among employees, you should consider your next career move and whether the difference in political philosophy is important enough for you to rethink your future at this company.
In most states, there is no law against political activity retaliation. An employee could be disciplined or fired for leaving work to attend a rally or other political event, even if they are allowed to leave for lunch. However, employers who allow their employees to leave the premises for breaks would probably find it not worth the effort to clamp down on this type of political participation.
While an employer can enforce its lunchtime period and penalize employees who are a minute late back to work, most companies realize that this is very bad for morale. Also, employees who are exempt from overtime have even more leeway with temporary absences from work. Realistically it is difficult for employers to prevent employees from using their lunch breaks to engage in political activity.
Employees who do not have legal protection under anti-retaliation laws should be aware of the risk. The risk is higher if the political views you support conflict with the views of the company or your supervisors. It's always wise to not let outside activities interfere with your work during working hours. Even if your company doesn't strictly enforce the lunch hour, you should not take advantage of this by being absent for too long, regardless of the reason.
Even states with political retaliation or "lawful activity" laws do not offer much legal protection for email exchanges taking place during work hours. Most cases analyzing the rights of employees to communicate using the company's networks have favored the employer. This is because, in most circumstances, employees do not have a reasonable expectation of privacy when they use the employer's system to transmit the e-mail.
Many companies now have policies governing the use of the company's e-mail system. Policies may provide even stronger grounds to discipline or fire employees if emails violate company policy. The following typical policy would permit an employer to take disciplinary action while placing employees on notice as to what kinds of communications are not permissible.
Sample E-Mail Policy Email will not be used for personal gain, outside business activities, political activity, and fundraising, or charitable activity not sponsored by [Employer]. Email will not be used to promote discrimination based on race, color, national origin, age, marital status, sex, political affiliation, religion, disability, or sexual harassment; or to promote personal, political, or religious business or beliefs.
Even if your employer does not have an e-mail policy, to the extent that political discussions via e-mail are affecting productivity or causing distractions, your employer may wish to limit them. There is no reason why employees cannot engage in such debates using their personal email accounts, outside of work hours, involving only those who choose to participate.
You may wish to start by asking the employee who sends the emails to remove you from their email list. If that does not solve the problem, you can find out if your employer has an e-mail policy that applies to this situation. Involving the human resources department can be helpful. HR can neutrally remind employees of the diversity of political views in the workplace, encouraging them to be respectful of each other and mindful of the effect their words have on others.
If you are offended by the solicitation, you may wish to contact your company's Human Resources (HR) department to find out if there is a policy. If there is not a policy, then it is up to the company's management to determine whether solicitation will be allowed. There is no law that governs workplace solicitation in private workplaces.
However, you may want to find another location to hold your conversations, or limit them to hours outside of work, so that you do not create workplace conflict or cause distractions affecting productivity.
To learn more about workplace dress codes, please visit our site's page on dress codes and grooming.
To learn more about blogging, please visit our site's page on off-duty conduct.
- Preempt these types of conversations. As a private employer, you can prohibit the conversations altogether without fear of violating the First Amendment. However, be aware that some states explicitly forbid private companies from restricting free speech. If your state has a law like this, you may not be able to have a blanket prohibition on political speech. If you can’t prevent the conversation, you can address the risk of hostile work environment with policies and procedures ahead of time to combat any potential conflicts before they occur.
- Poll the office. Employers may poll the office to determine if there is any actual risk of argument breaking out in the office and if you will need to take any further action to prevent that. If everyone is on the same side of the issue, it would be unlikely to create a hostile work environment. Explain what the poll is for when you’re handing it out and give people the option to opt out of the poll if they choose.
- Ask people to voluntarily avoid talking about it and express your concerns that they atmosphere at work might be negatively affected.
- Update the employee handbook. The employee handbook and “Code of Conduct” can be used to communicate your expectations for employees in the workplace. You should outline your expectations that all employees treat each other with dignity and respect differences in opinions. The employee handbook can also address electronic forms of communication. This may eliminate the heated conversations that arise misinterpretation of written messages. Advise the employees that the company’s email and information systems should be used for business-related purposes only. Employee handbooks have been criticized for being overly broad by the NLRB. In 2016, the NLRB threw out a provision in T-Mobile’s employee handbook that required workers “to maintain a positive work environment by communicating in a manner that is conducive to effective working relationships” holding that the rule stifles workers’ rights under Section 9 of the NLRA to engage in concerted activities. So as an employer, be sure to avoid drafting broad provisions.
- Remain neutral.
© 2022 Workplace Fairness