November 03, 2008

This being a presidential election year, the topic of the "right" of political expression in the workplace is of particular interest. Moreover, given that this year represents the first real opportunity for the election of an African American for president or a woman as vice president, there are particularly strong feelings among the electorate, including employees. As the campaign season continues and moves toward the general election, many employers are reexamining their rights and policies with respect to political activities in the workplace.

A good starting point is to debunk a popular myth. A 2001 study by the AFL-CIO concluded that 80 percent of employees believe that it would be illegal for their employer to fire them for engaging in political expression at work. With limited exceptions, at least with respect to most nongovernmental employers, this is an instance where 80 percent of employees are wrong.

Public and Private Employment Contrasted

How can 80 percent of employees hold such a wrong opinion? The answer lies in a general lack of understanding of the First Amendment's guarantees of freedom of speech. The First Amendment's protections apply only to "state action," and not to private employment. Thus, unless the conduct at issue ties to a federal statute prohibiting discrimination on other grounds, for example religion under Title VII of the Civil Rights Act, there is no federal protection for engaging in political activities at work. Additionally, most states lack either constitutional or statutory equivalents to the First Amendment that extend to private employment.

State Laws Examined

Interference With the Right to Vote or Hold a Political Position Notwithstanding the absence of federal constitutional or statutory protections, and the relatively small number of state protections afforded to employees' political activities in the workplace, employers should be aware that there are a number of state statutes that provide protection for both public and private sector employees against interference with their right to vote. Similarly, some states also protect an employee's right to run for or hold office, although in the absence of such a statute, some cases have upheld terminations based on the employee holding a public office.

Protection From Workplace Discrimination Based on Political Activities
Beyond the state protections for the right to vote or hold office, there are at least three different types of state statutes that may limit a private employer's ability to restrict its employees' political activities. First, at least two states, California and Louisiana, have statutes that specifically protect private employees' political activities. Second, at least two other states, Connecticut and South Carolina, have broad free speech provisions that apply without regard to any state action. Third, other states have what are coined "off-duty protection statutes" that prohibit employers from taking adverse action against an employee for engaging in certain lawful activities while the employee is off duty.

California's statute that specifically addresses political activities forbids attempting to influence employees, ". . . to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity."

Louisiana's statutory protection for employees who participate in politics and run for political office is the broadest in the nation. The Louisiana statute provides that employers with 20 or more employees cannot threaten employees with the loss of employment if they ". . . should support or become affiliated with any particular political faction or organization, or participate in political activities of any nature or character." A Louisiana appellate court has found that "[t]he policy of the statute is unmistakable" and that there is no exception to the employee's right to engage in political activity, even in a situation where the employee's participation was disruptive or threatening to the employer's interests. The court's refusal to balance the interest of the employer with that of the employee's right to engage in political activity is unusual.

For example, Connecticut has a broad free speech provision without a state action requirement. However, the statute specifically states that any private employer that discharges an employee for exercising his or her federal First Amendment rights or similar state constitutional rights will be liable to the employee only if "such activity does not substantially interfere with the employee's bona fide performance or th e working relationship between the employee and the employer."

In addition, when applying the statute Connecticut courts have given substantial weight to employer interests. It should be noted that while the Connecticut statute extends to private employees the same protection for free speech that the First Amendment gives public employees, the statute applies only to speech or expression regarding public concerns that are motivated by an employee's desire to speak out as a citizen.

In a case decided under the Connecticut statute, an employee who refused to display an American flag at his workstation that was provided to him by his employer was held not to be protected because the employer's request did not require the employee to do or say anything related to his own personal political beliefs. The workstation was also not such that members of the public or even his fellow employees reasonably could have identified the flag with the employee personally. Considering those circumstances, the court found that the employee was not "compelled to articulate or to refute any political belief," and therefore, he did not have a viable claim.

South Carolina has a statute similar to that of Connecticut in that it also provides broad free speech protection but contains no state action requirement. South Carolina's statute makes it unlawful to "discharge a citizen from employment or occupation . . . because of political opinions or the exercise of political rights and privileges guaranteed . . . by the Constitution and laws of the United States or by the Constitution and laws of [South Carolina]." However, much like in Connecticut, the courts have interpreted the South Carolina statute somewhat narrowly, even though it has been recognized as a source of protection for some political speech. For example, the Supreme Court of South Carolina has applied the statute to rule that a private employer is prohibited from terminating an employee for refusing to contribute funds to a Political Action Committee designated by his employer.

The 4th Circuit Court of Appeals has also addressed the question of the South Carolina statute's application to private employment. The case involved a member of the Sons of Confederate Veterans who refused to remove a confederate battle flag decal from his toolbox. An African American co-worker complained that displaying the flag violated the company's antiharassment policy. After the employee was terminated for refusing to remove the flag decal, the 4th Circuit held that the South Carolina statute did apply in private sector employment.

However, the court upheld the discharge, ruling that there were distinctions between a constitutional right to fly the confederate flag on private property as opposed to, for example, on the state capital grounds. The court referred to what would otherwise be an "absurd result" of considering every private workplace a constitutionally protected forum. The case is of little precedential value because the employee petitioned for rehearing en banc and the 4th Circuit vacated its prior opinion, stating that the district court lacked jurisdiction over the case.

In another flag case, this one involving a public employer, another member of the Sons of Confederate Veterans contested his employer's policy that forbade "racially or sexually insensitive markings" on vehicles parked at city worksites. The employee insisted that he had a right to display a confederate flag decal on his truck. The court agreed and granted summary judgment for the employee.

Without straying too far into the topic of religion, one other confederate emblem case is worthy of note. A federal district court in Virginia upheld an employer's order to remove a confederate decal on the employee's toolbox against a claim by the employee that being a "Confederate Southern American" brought him within the protection of Title VII's prohibition on religious discrimination. The North Carolina Court of Appeals also has upheld the discharge of the employee under similar factual circumstances.

Staying on the subject of flags, it is interesting to note that both New York and New Jersey have enacted statutes that protect an employee's right to display the American flag, unless doing so would "substantially and materially interfere with the employee's job duties." Not surprisingly, both statutes were enacted shortly after 9/11.

At least four states - California, Colorado, New York and North Dakota - have statutes that provide fairly comprehensive protection for an employee's lawful off-duty activities, conduct and/or speech (and are often referred to as "lifestyle discrimination statutes"). California's lifestyle discrimination statute, which allows "[c]laims for loss of wages as the result of demotion, suspension or discharge from employment for lawful conduct occurring during nonworking hours away from the employer's premises," may be the most encompassing of its type in the nation. The law gives both employees and job applicants the right to bring a claim before the state's Division of Labor Standards Enforcement. Even though the plain language of the statute indicates that it protects all lawful off-duty conduct without exception, an early interpretation of the statute by the California Attorney General limited its reach to only independently recognized constitutional or statutory rights.

Colorado's "lifestyle" statute prohibits restrictions on nonwork and off-duty activities. The statute creates a right for employees to engage in lawful off-duty activities, but that right is not absolute because, unlike California's statute (which contains no exceptions or counterbalancing factors), the Colorado statute reserves exceptions for lawful activities that are related to an occupational requirement or create a conflict of interest. In a case in which an employee wrote a letter to a newspaper that was critical of his employer, a court interpreting the statute found that the employee had a "bona fide occupational duty to be loyal" to his employer and did not deserve protection. Colorado's statute also leaves open the possibility that, by using analogous case law, an employer might successfully argue that the speech at issue does not address a matter of public concern.

New York's statute provides protection for off-duty activities only in specific circumstances. There are four categories of off-duty conduct that a New York employer is not allowed to discriminate against, which include recreational conduct, political activities, use of consumable products and union membership. However, there are exceptions in the New York statute that allow an employer to act against employees in the protected categories if the protected conduct would cause a "material conflict of interest related to trade secrets, proprietary information or business interests."

North Dakota's statute applies to both employees and job applicants, and it prohibits employers from discriminating due to participation in lawful off-duty activities. However, protection is not extended under the statute if the activity at issue is in direct conflict with an employer's essential business related interest. This provision appears more restrictive than other state statutes having an exception for the mere appearance of a conflict of interest or a material conflict of interest.

Political Activities By Governmental Employees

As recently as 1952, the U.S. Supreme Court adhered to the view that "you have a constitutional right to say and think as you will, but you have no constitutional right to work for the government." Subsequent cases, however, established the proposition that an employee does not sacrifice his or her constitutional rights when going to work for a public employer. The Supreme Court was then faced with the issue as to how to balance a public employer's interest in maintaining an efficient workplace against employees' free speech rights. The court first made a distinction between matters of public concern and those which were not related to political, social or other community concerns. Later, the high court ruled that employees working in a "policy making" position are not protected, even when the statements at issue involve matters of public concern.

In the most recent Supreme Court decision on the issue, the court struggled with the case of a deputy district attorney who suffered an adverse employment action because of statements he made to others in his department questioning the credibility of a deputy sheriff's affidavit. The court, in a 5-4 decision, held that public employees do not have First Amendment protection for statements made as a part of their official duties. It is interesting to consider whether this result gives an incentive to public employees to air work-related complaints publicly, at least if the complaints relate to the public employee's job duties.

What's an Employer to Do?

As is clear from the above, it is crucial to first understand whether the employing entity would be considered a public or private employer. For private employers, it is equally important to be aware of applicable state law provisions and court decisions which construe them (e.g., with respect to when and to what degree an employer's interest in properly controlling the workforce will be considered). Employers should also take into account the guidance memo issued by the National Labor Relations Board.

Once these issues have been resolved, a careful policy should be drafted to clarify for supervisors and employees what the rules are with respect to political activities. Employers should recognize that political expression at work can interfere with not only the work of the employee engaged in the activity, it can also adversely affect other employees who hold differing points of view. Moreover, other employees may feel badgered or harassed by fervent advocates of one candidate or another.

The workplace should not be viewed by any employee as a place for convincing others of the "right" stand on political issues or candidates. While there may be some employees who feel stifled by such a policy, the great majority of employees, whatever their political persuasions, will respect the company for eliminating this potentially contentious subject from their workplace.

Note: This article was published in the September/October 2008 issue of The Employment Law Authority.