In this election year, media platforms are buzzing with heated political discussions, candidate interviews, and an endless stream of news stories centered around the upcoming presidential election. There are increasing reports from employers that political discussions and disagreements are spilling over into the workplace.
Most private-sector employees are unaware that the constitutional First Amendment right to free speech applies only to government employees, not to employees working for a private business. Government employees have protection for their political activity as long as it occurs outside of work. Currently, there is no federal law that legally recognizes any protected type of class based on political beliefs or actions.
However, employers can prohibit political discussions that might violate anti-discrimination or anti-harassment laws, such as promoting hostility or violence, violating company policies such as code-of-conduct rules, or generally infringing on the rights of others.
State Laws on Political Activity Discrimination
Discrimination based on politics happens when an employer makes job decisions because of an employee’s political beliefs, party affiliation, or civic activities. Political Affiliation Discrimination is defined as discrimination based on a person’s political beliefs or membership in a political group. In most states, private employers can terminate their employees for their political activities or affiliations as long as the termination isn’t a form of voter intimidation or coercion.
However, some state laws and local ordinances do offer employees protection. States that prohibit some form of political affiliation discrimination in the private sector include: Arizona, California*, Colorado, Georgia, Illinois, Iowa, Louisiana, Massachusetts, Minnesota, Missouri, Nebraska, Nevada, New Mexico, New York
North Dakota, Ohio, Oregon*, South Carolina, Utah, Washington, Washington, D.C., or West Virginia.
* California employment law states that employers may not fire or otherwise retaliate against a worker for their political activities or political beliefs. California Labor Code section 1101 restricts employers from making, adopting, or enforcing rules, regulations, or policies affecting certain types of political behavior. For example, employers are not allowed to forbid employees or prevent employees from running for office, participating in politics, or engaging in political activity. Employers are also prohibited from making any attempts to control the political affiliations or political activities of any employee. Employers cannot retaliate against workers who may express political beliefs that differ from the employer’s.
* Oregon: Most of Oregon’s laws on discrimination due to political affiliation and activities pertain to public employees. In the private sector, it covers restrictions on an employer’s undue influence, including job loss threats with the intent to influence individuals’ voting, political activities, and contributions. Oregon prohibits employers from discriminating against employees who have signed initiatives, referendums, recalls or candidate petitions and prohibits discrimination based on contributions to a specific campaign. Employees may not be penalized for refusing to attend meetings intended to allow their employer to communicate political or religious opinions. Contact the Bureau of Labor and Industries [BOLI] for more information.
Termination Due to Political Activities Performed in the Workplace
Many states do not protect anything beyond the employees’ voting rights. Even where a state or local ordinance prohibits discrimination based on political activity, actions an employee takes in the workplace in support of a political party may subject the employee to discipline for reasons unrelated to the political content of the activity. This may be the case when the activity interferes with work performance or violates a specific employment policy, such as a policy against mass emails, solicitation or personal conversations during work hours, or personal attire standards.
Illegal Employer Conduct Based on Employee Political Activity
In some states, ordinances and statutes specific to employers sometimes make a political activity or affiliation a protected classification. Here is a list of illegal employer conduct based on employee “political activity” in the private sector:
- Refusing to hire someone because the person’s social media activity supports controversial laws, organizations, or candidates.
- Terminating employment because the employee contributed, or refused to contribute, to a re-election campaign.
- Disciplining an employee who signs a petition related to a ballot measure.
- Terminating employment because the employee attended a protest rally protest during non-working hours.
- Threatening to discharge or discharging an employee who runs for any political office.
Employee Termination vs. Employee Relations
Employers should consider the ramifications of firing a worker based on their political activities from an employee relations perspective. While it is good employee relations to support your employees…so if someone’s political activity is offensive to other employees and the company’s principles—whether because it criticizes the employer, creates tension with coworkers, alienates customers, or otherwise draws public hostility to the employer—a termination could be legal. However, most employees expect employers to stay out of their personal lives, so such a termination could be seen as a threat against all employees and subject your business to a lawsuit.
Cardinal Services can Review your Company Policy on Political Activity in Your Workplace.
Setting a policy on political speech and activity can be complex and perceived as controversial by your employees!
- If you currently hire or employ through Cardinal, we’ve already got you covered on this topic.
- If you do not have a policy in place, let the HR experts at Cardinal help you navigate this complex issue. Our HR Specialist can help you develop an HR policy for your company. Call us—we’ll be happy to schedule a consultation.