A public-school teacher wears a MAGA hat at a training session on cultural sensitivity (Dodge v. Evergreen School District #114, 56 F.4th 767 (9th Cir. 2022)), an actress in a mega-million-dollar film posts controversial views on social media (Gina Carano v. The Walt Disney Company, 2:24-cv-01009, (C.D. Cal.)), and a college professor refuses to use a student’s preferred gender pronoun (Meriwether v. Hartop, 992 F.3d 492 (6h Cir. 2021)). These real-world examples highlight the conflict that can exist between employee free speech and potential harassment.
Although political discussions at work can bring diverse views, political speech in the workplace can occasionally cross boundaries, resulting in discrimination or harassment and consequent legal issues. Employers must manage speech to respect both productivity and colleagues’ rights. Understanding the limits of regulating political speech is essential for maintaining a harmonious and efficient workplace.
This article provides an overview of important considerations for employers faced with workplace dilemmas concerning political speech. It also discusses how workplace investigations can help employers make decisions about how to balance employees’ rights with maintaining a respectful and efficient work environment.
Private Employers
Private employers have more freedom to regulate political speech and expression in the workplace because the First Amendment’s protections against government regulation of speech do not apply to them. However, they must continue to be mindful of other applicable laws that limit the extent to which employers can regulate employees’ speech.
The National Labor Relations Act (NLRA) grants employees the right to engage in concerted activities. It applies to union and non-union employees in non-supervisory roles and safeguards employees who act together for collective bargaining, mutual aid, and protection. Regarding political discussions, the NLRA prevents employers from banning employee conversations about labor or working conditions, even if these discussions are framed in terms of politics or current events.
State laws may also protect employees’ political speech or expression. For example, California Labor Code section 1101 prevents employers from creating rules, regulations, or policies that stop employees from participating in politics, including running for public office. Similarly, section 1102 forbids employers from pressuring or influencing employees through negative employment actions to follow a specific political path or activity.
Therefore, even private employers must be cautious when disciplining employees for political speech. Generally, private employers can regulate political discussions during work hours by implementing neutral policies regarding political speech. Likewise, before taking any action against an employee, employers should ensure they are not unintentionally displaying favoritism toward a particular political preference.
Public Employers
The rules governing political speech for public employers are more complicated due to the First Amendment, which protects free speech from government interference. Employees of public agencies, such as government employees, have greater constitutional protections when expressing political opinions compared to their counterparts in the private sector.
However, this protection is not absolute. In the landmark United States Supreme Court case, Pickering v. Bd. of Education, 391 U.S. 563 (1968), the Supreme Court created a balancing test for cases involving public employees’ free speech. The Pickering Balancing Test helps determine if an employer can discipline or take action against an employee for their political speech.
The Pickering Balancing Test
The Pickering test comprises three main elements: first, it must be assessed whether the employee spoke in an official capacity as a government employee or as a private citizen. If the employee’s speech was part of their official duties, it is not protected by the First Amendment. If the employee spoke as a private citizen, it must be evaluated whether the speech involves a matter of public concern. If the speech did involve a matter of public concern, the next step is to balance whether the employer’s interest in maintaining workplace efficiency outweighs the employee’s free speech rights.
1. Speech as Part of Employee’s Duties
Speech made by employees as part of their job responsibilities is not protected under the Constitution. When public employees speak as part of their official duties, they are not considered to be speaking as private citizens for First Amendment purposes, and their communications can be subject to employer discipline. Garcetti v. Ceballos, 547 U.S. 410 (2006). Thus, if an employer determines that an employee’s speech was made as part of their job duties, the employer can regulate it. If the employee spoke as a private citizen, the next step is to determine whether the speech was about a matter of public concern.
2. Matter of Public Concern
The Supreme Court has stated that a matter of public concern “is something that is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of publication.” City of San Diego v. Roe, 543 U.S. 77, 83 – 84 (2004).
Accordingly, speech related to issues such as politics, policy, and societal matters typically falls under this category, as subjects that concern the broader public. Conversely, speech about personal grievances or internal workplace issues is generally not considered a matter of public concern.
Once it is determined that the speech involves a matter of public concern, the next step is to balance the employee’s free speech rights with the employer’s need to prevent disruptions and maintain workplace efficiency.
3. Balancing the Interests
A public employer can restrict speech if the disruption caused by the speech outweighs the employee’s right to speak freely. Factors such as the context of the speech, its impact on the workplace, and the nature of the speech are all considered in this balancing process. Answering the following questions can help with this analysis: Does the employee’s speech impair discipline or harmony among coworkers? Does it have a detrimental impact on close working relationships for which personal loyalty and confidence are necessary? Does it interfere with the normal operation of the employer’s business?
If an employee’s political speech leads to widespread disruption, reduced productivity, or conflicts among coworkers, the employer may have a legitimate interest in regulating or disciplining the employee. Conversely, if the speech is not disruptive, the employee’s First Amendment rights will often take precedence, and the employer cannot regulate the speech.
How Investigations Can Help Employers with Political Speech Issues
Employers may find it helpful to conduct an independent investigation when faced with concerns over political speech in the workplace. An investigation can help clarify the facts surrounding the speech – Was the employee engaging in concerted activity or discussing working conditions? Did the speech relate to the employee’s participation in politics or running for public office? Did the speech cross boundaries to the extent it could be considered discriminatory or harassing? – and thereby assist employers in determining whether the speech can and should (or should not) be regulated.
For public employers, an independent investigation can provide crucial factual information to facilitate the analysis of the Pickering Balancing test, such as whether the speech in question was part of the employee’s job responsibilities, whether it pertained to a government policy or an internal private conflict, and whether it caused any disruption in the workplace.
Conclusion
Navigating the complexities of political speech in the workplace requires a thoughtful and balanced approach. By understanding the nuances of speech that falls under public concern versus private grievances, employers can better balance their employees’ rights with their interest in maintaining workplace harmony. Independent investigations are invaluable tools that can shed light on the context and implications of political speech, ensuring that employers make well-informed decisions. Ultimately, fostering an environment that respects free speech while safeguarding the efficiency and cohesion of the workplace is paramount. This delicate balance not only protects employees’ First Amendment rights but also promotes a culture of open dialogue and mutual respect, paving the way for a more inclusive and dynamic working environment.
