Talking Politics at Work: Protected Free Speech?

Heated discussion around the water cooler

Election years can heat up the water cooler discussions.

It’s a presidential election year in America, and political discussions in the workplace can really make the water cooler steam. As an employer, you undoubtedly want your employees to get along and to get their work done, and you certainly don’t want to be accused of violating your employees’ First Amendment rights.

Private Employers

While there are facets of employee communication that are protected – the right of concerted activity, for example, which the National Labor Relations Board (NLRB) is quick to defend – the First Amendment, does not guarantee protection in a private employment environment, and that goes for offering political opinions while on the clock.

In fact, the First Amendment to the Bill of Rights is really only about limiting the laws that the federal government can make.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Consider the unhappy case of John Griffin, Jr., a radiology technician formerly employed by Speare Memorial Hospital in New Hampshire. In 2009, after President Obama’s inauguration, Griffin made some comments while on duty in the presence of a hospital patient expressing, let’s say, a lack of confidence in the new administration. Specifically, he mentioned that he was stockpiling weapons and food.

News of these comments soon made their way to his supervisor, and Griffin was terminated for misconduct. After being denied unemployment benefits, he literally made a federal case out of his situation, alleging violations of his rights under the First, Fifth, and Fourteenth Amendments. The U.S. District Court of New Hampshire found that those provisions impose limitations on the conduct of federal agents and state actors, not private citizens.

Connecticut is an exception, however. The state’s employment regulation extends First Amendment protections to private employees so long as the employee activity doesn’t interfere with the employee’s job performance or the working relationship between the employee and the employer.

Public Employers

Public employees also are treated differently. In Ricciuti v. Town of Madison, another U.S. District Court stated that a government employee who brings a First Amendment retaliation claim must show evidence of protected First Amendment activity and subsequent adverse employment action. The ruling noted, however, that:

Not everything public employees say in the workplace constitutes protected speech. Were that the case, government offices would soon cease to function.

In Ricciuti, the U.S. District Court cited the Supreme Court’s decision in Garcetti v. Ceballos, which determined that:

Public employees do not surrender all their First Amendment rights by reason of their employment…a citizen who works for the government is nonetheless a citizen…The First Amendment limits the ability of a public employer to leverage the employment relationship to restrict, incidentally or intentionally, the liberties employees enjoy in their capacities as private citizens…the First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern.

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Discussing Politics in the Workplace

Based on the plethora of recent articles, it seems people are writing (almost obsessively) about political discussions in the workplace.  Much has been said about the pros, cons and legalities.  I’ve summarized a few common themes that have crept into just about every article I’ve read:

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  • Political discussions in the workplace have become more acceptable. One article even called it fashionable.  Some employers believe it can be healthy by fostering an atmosphere of free expression and encouraging ways to find common ground with co-workers.  Others argue it has the potential to be a huge time waster and an unnecessary diversion from productive activities, especially during election season.
  • The reality is that it is very difficult to control.  Whether you have a “no discussion” policy or allow some banter, proceed with caution and beware of unintentional consequences.  What seems like a spirited debate can quickly escalate into a claim of harassment and/or discrimination.
  • Put measures in place to strictly avoid abuse of position.  An employee’s political views should have no influence one way or the other in performance reviews or promotion considerations.
  • In the private sector, Freedom of Speech does not necessarily extend to the private property of the business.  For example, employers have a right to forbid use of company e-mail for distributing political cartoons, etc.  And, they can restrict t-shirts or buttons with political flare, if the employee deals directly with customers.  Public sector (government) employees are held to a different standard.
  • Workplace policies should be independent of political influence.  For example, requests for time off to volunteer on a political campaign or to attend a rally should be treated with the same rules as a time off requests for any other reason – advanced notice, vacation time banked, etc. (not to be confused with time off to vote. See Voter Time Off, Oct 22, 2008).

Has the political discussion in your organization impacted the workplace?  If so, how?


Links to a few articles: