Talk Less, Smile More? Employee Political Speech and Activity

In the current political climate, talking politics has undoubtedly become a national pastime. Over the past several months, political discussions have been infiltrating the workplace, leaving many employers asking whether they can regulate political speech and activity.

Section 7 of the National Labor Relations Act (NLRA) provides the federal framework governing political speech and activity in the workplace. Under the NLRA, non-supervisory employees must be allowed to participate in political activity relating to labor or working conditions. The National Labor Relations Board (NLRB) has stated that under the NLRA, employees have the right to protest, discuss legislation regarding working conditions, testify before agencies and campaign for a political party if participation in such activity is related to the employee’s conditions of employment. Similarly, the NLRA also protects political speech in the workplace if such speech relates to employment conditions.

In Chipotle Services LLC and Pennsylvania Workers Organizing Committee (Nos. 04-CA-1437314; 04-CA-149551), the NLRB affirmed an administrative law judge’s holding that an employer’s policy barring the discussion of politics in the workplace violated the NLRA, as such a policy had the potential to chill discussions regarding terms and conditions of employment. Based on the NLRB’s broad reading of when political discussions could impact working conditions, the safest position — at least until the Trump administration changes the composition of the NLRB — is for employers to permit employees to engage in political speech and activity in the workplace. However, because of the significant overlap between current political issues and employee protected characteristics, such as gender, national origin and religion, employers must balance employees’ right to engage in such activity with other employees’ right to work in an atmosphere free from harassment and discrimination. For example, a political discussion regarding the right to gay marriage has the potential to devolve into a discussion involving harassing or discriminatory comments regarding sexual orientation, in violation of the law.

New York state law provides broader protections for employee speech and activity than those provided under federal law. New York Election Law § 17-150 strictly prohibits an employer from making any “threats, express or implied, intended or calculated to influence the political opinions or actions of his employees.” Further, New York Labor Law § 201-d prohibits employers from discriminating against employees because of their legal political or recreational activities when conducted outside the workplace and outside working hours, without utilizing employer equipment or other property. While the statute narrowly defines “political activities” as running for public office, campaigning for a candidate for public office, or participating in fundraising activities for a candidate, political party, or political advocacy group, “recreational activities” is broadly defined as “any lawful, leisure-time activity, for which the employee receives no compensation and which is generally engaged in for recreational purposes.” Based on the broad definition of “recreational activities,” an employee could potentially argue that politically related activities outside the workplace, such as protesting or politically based social media activity, are protected recreational activities under the New York Labor Law and thus permitted. However, the Labor Law specifically exempts from protection employee political or recreational activity that creates a material conflict of interest related to the employer’s trade secrets, proprietary information or “other proprietary or business interest.”

In fact, a case was recently filed in New York Supreme Court raising the issue of whether an employee’s politically related social media activity is protected as “recreational activity” under the Labor Law. In Hubbuch v. NYP Holdings, Inc. d/b/a New York Post, a sports reporter was terminated by The New York Post for tweeting “12/7/41. 9/11/01. 1/2017.” from his home computer after working hours. In his complaint, the reporter claims that he was unlawfully terminated for engaging in protected recreational activity under New York Labor Law § 201-d. While The New York Post has not yet answered the complaint, it may well contend that the reporter’s speech created a material conflict of interest with the newspaper’s business interests and thus was not protected under the Labor Law. As such, this case may present an opportunity for the courts to provide more definite guidance regarding the limits of protected political speech in the employment context.

In order to balance the various protections granted to employee political speech and activity in the workplace with employers’ concerns about not letting political tensions erupt in the workplace, employers should consider implementing the following best practices:

• Treat employees equally regardless of political belief or affiliation. For example, if employees are able to use bulletin boards for politically related announcements, all political views must be allowed.
• Remind employees and managers of the company’s respect in the workplace, anti-harassment and anti-discrimination policies, and consider providing additional training on such policies.
• It may be advisable to discourage supervisors from having political discussions with subordinates in order to minimize potential claims of discrimination and harassment and claims that an employer was attempting to influence the political actions or opinions of its employees.
• To the extent supervisors are on social media and are “friends” with subordinate employees on social media, they must be cognizant of the political nature of what they post or promote. A mechanism available to avoid potential issues is filtering their own social media posts and/or the posts of their subordinates. Supervisors could also consider not “friending” subordinate employees on social media if they believe that such a step is appropriate.

For questions or concerns regarding political speech activity in the workplace, please contact a member of Kramer Levin’s Employment Department.