Political Speech And Activity In The Workplace: The 2014 Midterms Are Here

Election season can be a heated time. In many contexts, this can mean arguments with friends, family, and acquaintances. It can also mean added tension and disagreement in the workplace. In some cases, employers may seek to minimize political discussions at work. In others, employers themselves may try to introduce politics into the workplace. Regardless of whether an employee may engage in political activity in the workplace, employees may have rights to conduct political activities outside of work, and to take time off from work, where needed, to vote in an election.

2014 Midterms

On November 4, 2014, voters around the country will head to polling places to vote for candidates for the U.S. House and Senate, and for representatives at the state and local levels. Indeed, in several states, voting has already begun with the casting of absentee ballots and vote-by-mail ballots, and early voting at polling stations open before Election Day. Because these elections determine control of legislative bodies or governors' mansions, a host of candidates, political parties, and independent committees have encouraged voters to contribute, volunteer, and express their political preferences by talking to their friends and neighbors. Naturally, individuals may also bring their political preferences to work. How should employers respond in these circumstances?

Federal Laws Protecting Employees

It is a federal crime to interfere with an individual's ability to vote for federal candidates, or to coerce that individual to cast a ballot in a specific way.1 Similarly, it is unlawful to bribe or offer an "expenditure" to an individual in exchange for voting a certain way.2 Obviously, employers and their agents should refrain from doing either with respect to their employees.

In the same vein, Section 7 of the National Labor Relations Act, which applies to both unionized and non-unionized employees, provides that "[e]mployees shall have the right ... to engage in ... concerted activities for the purpose of ... mutual aid or protection."3 The U.S. Supreme Court has interpreted the provision to mean that employees may organize as a group to "improve their lot" outside of the employer-employee relationship.4 Essentially, employees may engage in protected political advocacy so long as it relates to labor or working conditions; this can mean contacting legislators, testifying before agencies, or, more relevantly for election season, joining protests and demonstrations. Employers are generally barred from retaliating against employees who participate in these types of political activity, so long as the means used are not themselves prohibited.5

While the nexus is not always clear between the political advocacy and the benefit to workers, the General Counsel for the NLRB has offered guidance that includes the example of an employee attending a demonstration in favor of immigration reform as being protected by Section 7. According to the General Counsel, because employment verification legislation could be deemed to chill even legal hiring activity, the demonstration sufficiently relates to the employees' "mutual aid or protection"6 To the extent an employer is not sure about whether an employee's political advocacy is protected by Section 7, the best...