Predicaments of protest: Which expressions are protected, and which are not?

This year has come in like a lion and -- with the pandemic continuing, protesters still marching, and a presidential election looming -- it will not go out like a lamb. Issues ranging from systemic racism to wearing masks will continue to polarize the general populace and, with it, your workforce. Our previous bulletins (here and here), discussed the potential repercussions for employers who fail to properly respond to employee protests regarding alleged failures to implement and enforce appropriate COVID-19 safety protocols. Now, we focus on the potential repercussions of using adverse employment actions to regulate  the “political” conduct of your employees.

Political conduct includes a broad spectrum of activity, which can occur both on and off the clock. It may include attending rallies, public speaking, commenting on social media, or wearing hats or t-shirts with political messages. Needless to say, one employee’s beliefs and expressions may conflict with those of another employee. For example, one employee may wear a “Black Lives Matter” t-shirt, while a co-worker may wear a t-shirt with a picture of the Confederate flag, and this can result in workplace disputes and complaints.

Contrary to the belief of some employees, employees in the private sector do not have a First Amendment right to engage in political activities at work. Contrary to the belief of some employers, the employment-at-will doctrine does not necessarily permit them to take adverse actions against employees who engage in political activities. Rather, properly responding to political conduct by employees is much more nuanced and dependent on the circumstances of the situation.

Off-duty conduct

Many states and localities prohibit employers from taking adverse actions against employees based on their off-duty political activities. (Some laws actually prohibit taking adverse actions for any lawful off-duty conduct, and are not limited to political conduct.) As with most things in life, the devil is in the details when it comes to the types of political activities covered by those prohibitions. For example, one state or locality may prohibit employers from taking adverse action based on attendance at a political protest or rally, while others may prohibit adverse action only if it is based on an employee’s political affiliations.

These prohibitions may be subject to exceptions when the off-duty conduct implicates an employer’s interests. For example, an employer may be allowed to take action against an employee for making inflammatory comments and suggesting that he or she is speaking for the employer.

It is not the purpose of this article to describe the scope and reach of every such state law or local ordinance. But employers should seek counsel before deciding to take any type of adverse action against an employee for engaging in off-duty political activity, even if that activity is in support of a cause that the employer finds offensive.

Even if there are no applicable state laws or local ordinances, taking adverse action against an employee for off-duty political conduct may prompt claims of discrimination under federal discrimination laws, such as Title VII. For example, terminating an employee for attending a protest against racism, while not terminating an employee for making racially offensive comments on social media, may prompt claims of disparate treatment based on race.

When an employer attempts to regulate its employees’ off-duty conduct, without regard to whether that conduct damages the employer’s reputation, exposes its proprietary information, or otherwise implicates a protectable interest, the employer has started down a road that could lead to litigation.

On-duty conduct

On-duty political activities, on the other hand, fall more neatly into the realm of conduct that an employer can and usually should regulate. Allowing political expressions in the workplace can lead to conflicts between employees and interfere with productivity. Prohibiting this type of on-duty expression serves the legitimate, non-discriminatory interests of maintaining harmony, good morale, and productivity.

However, an employer’s ability to regulate on-duty conduct is not without limits. For example, if the on-duty political expression is the product of, or even overlaps with, complaints about the employees’ wages, hours or working conditions, the conduct may be protected by the National Labor Relations Act, the anti-retaliation provisions of Title VII, or the terms of an applicable collective bargaining agreement. For example, a complaint about racially disparate treatment at the company (as opposed to a complaint about racially disparate treatment in the community at large) may be legally protected.

Once again, it is impossible to describe every situation and pitfall that an employer may face when attempting to regulate on-duty political expression. But employers should be aware of the possibilities, look both ways before trying to cross the street, and ask for help when needed.

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