Editor’s note: In the age of social media and viral videos, an employee’s involvement in protests or other forms of political expression is unlikely to escape the attention of his employer. What happens when politics and business collide? In this column, attorney Jill McQueen provides guidance to employees and employers alike. McQueen’s practice spans more than 30 years and she chairs the Employment Law Practice Group at Day Ketterer Ltd.
Mixing work and politics
Employers have a legitimate interest in minimizing disruptions to their business operations and ensuring their employees are not interfered with as they go about their duties. In recognition of this interest, the law grants private sector employers broad authority to curtail political expression by their employees while they are at work.
For example, lawful policies may include a rule against soliciting contributions to a political campaign during working time, or a rule against employees wearing tee shirts, caps, or buttons with political messages at work. An employer may not, however, prohibit workers from wearing a labor union insignia in the workplace; to do so would violate federal labor law.
Other considerations come into play when the employer is not a private business but a governmental entity, as discussed below.
Employees and free speech laws
The First Amendment guarantee of free speech protects citizens against government action. It does not apply to the actions and policies of private employers, and therefore is not a bar to a private business firing an employee for expressing views of which the employer disapproves. In other words, a private employer may limit, or prohibit altogether, political activity and speech at work without constitutional implications.
Different rules govern public (governmental) employers whose employees are shielded by the First Amendment in some situations. Generally, courts make the following distinction: When a government worker speaks in his capacity as an employee about matters relating to his employment, his speech is not protected by the First Amendment. By contrast, when an employee speaks in his capacity as a private citizen about a matter of “public concern”—that is, a social, political or community issue—she is likely to be protected. In the latter situation, the employee may be subjected to only those restrictions that are necessary to allow her employer to operate efficiently and effectively.
Political activism outside of work
Generally, an employer may not control an employee’s personal time, so an employment termination based on off-duty behavior must be approached with caution. If an employee engages in misconduct while engaged in a political demonstration—for example, by committing an act of violence—disciplinary action may legitimately follow if the activity compromises the employee’s ability to perform his job effectively or if the conduct is damaging to the employer’s business. If the protester in our example is the director of a nonprofit organization whose mission is to rehabilitate gang members and advocate non-violent conflict resolution, his involvement in a brawl could very well undermine his ability to function effectively in his position, not to mention cause donors to withdraw their support of the organization.
Off-duty misconduct and disciplinary action
The question of whether there is a sufficient connection between an employee’s off-duty misconduct and his job to warrant disciplinary action or discharge requires a case-by-case analysis, taking into consideration such factors as the type and seriousness of the misconduct committed, the nature of the employer’s business, the employee’s role within the employer’s organization, the adverse publicity generated by the employee’s conduct (particularly if such publicity links the employee to the employer’s business), and the potential impact on the employer’s business, customers, clients and workforce.
In enforcing policies and administering discipline, employers must strive for consistent and equal treatment, and not single out employees based on religious beliefs, race, gender, or other characteristics protected by law.
Employers seeking to curtail disruptions at work may wish to put in place a code of ethics, a rule against solicitation of any kind during working time, and a policy permitting use of company computers and electronic communication systems for work-related activities only. The employer must then be prepared to enforce such policies consistently.
An attorney familiar with these issues can assist employers to draft and implement the rules and policies that meets the needs of their particular organizations.
How an attorney can help
When an employer learns that its employee has engaged in speech or conduct of which the employer disapproves, its first instinct is often to part ways with the individual as quickly as possible. A knowledgeable attorney can help by objectively assessing the competing legal rights of employer and employee and guiding the employer through a measured and lawful response. The value of obtaining this type of guidance before a decision to discipline or discharge is made cannot be overstated. Employees, too, may wish to consult legal counsel for a clearer understanding of their rights, and the point at which the expression of personal political convictions may have an impact on their future employment.