Can-My-Employees Participate in Political Activities? [PODCAST] (2023)

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Transcript: Podcast: FAQs Videos

Monday, February 25, 2019

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In this episode of the “Can My Employees Do That?” series, partnerElise BloomandassociateMichelle Gyvesdiscuss whether employers can lawfully limit an employee’s participation in political activities, protests, and similar activities.We also discuss whether an employer can restrict an employee’s association with groups or publications on social media or elsewhere which espouse ideologies that are at odds with the employer’s values.Lastly, we will cover to what extent an employer can limit political speech at work. So be sure to tune in for this very insightful episode.


Shelly Gyves:Hello, welcome to the Proskauer Brief: Hot Topics on Labor and Employment Law. I’m Shelly Gyves and I’m here with Elise Bloom. On today’s episode, we are going to continue the next episode of our series of podcasts entitled, “Can My Employees Do That?”

Elise Bloom: Specifically, today we’ll be discussing whether employers can lawfully limit employees’ participation in political activities, protests, and similar activities. We’ll also discuss whether an employer can restrict employees’ association with groups or publications on social media or elsewhere which espouse ideologies that are at odds with the employer’s values. Lastly, we’ll talk about whether, and if so, to what extent an employer can limit political speech at work. Shelly, many employees believe that an employer cannot discriminatebased on an employee’spolitical beliefs. Are they right?

Shelly Gyves: In many cases, no. There’s no federal law that prevents discrimination by private employers based on political belief. Under federal law, it’s perfectly legal for an employer to discriminate against or prefers to say, employees that are Republicans, Democrats, Conservative, or Liberal, but there are a handful of states that have protections that are greater than federal law.

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California, for example, state law provides that an employer cannot have a policy controlling or directing the political affiliations of employees. Similarly, Colorado says that you cannot prevent employees from joining or belonging to any particular political party. In Montana and Washington D.C., they are examples of other states and localities where there are similar protections based on political ideas or political affiliation. Then, there are some other states that don’t have such broad prohibitions on political belief or political affiliationdiscrimination, but they do protect certain political activities by employees. In New York, there’s a law that says that you can’t discriminate against an employee and employment as a result of them running for public office, campaigning for a candidate for public office, or participating in fundraising activitiesfor the benefit of a candidate, political party, or a political advocacy group.

Similarly, in Nebraska, there’sa protection of an employee’s right to vote or not vote for a particularcandidate, ball proposition, or something along those lines. I think the bottom line is that it’s really on a state by state basis whether an employer is able to have some sort of preference in employment based on political belief. I think that raises the question, at least, if there’s no protection around a political belief or if there’s protection some places around political beliefs and political affiliations, can an employer generally prohibit an employee from participating in protests, otherwise speaking, or posting about controversial or political topics?

Elise Bloom: It raises a very interesting question that really focuses on the tension between what an employer can prohibit during working hours on work premises versus what an employer can prohibit an employee from doing when he or she is not at work. There are really three buckets: the first is when an employee is on working time in work areas and when an employee is on work premises during working time if there is a clear, established policy that does not differentiate between types of political speech. An employer is free to inhibit political speech on work premises at work time.

Where the issue gets a little bit more complicated is when we look at whether an employer can extend those prohibitions to what an employee does during his or her non-working time, while either still on the premises or during a non-working time when they are off the premises. Why this becomes a little bit trickier is because there are some limitations on when employers can prohibit employees from either talking about certain topics or participating in protests or other events that advocate certain topics. I think the biggest limitation comes from the National Labor Relations Act which protects employees regardless of whether they are part of the union. Under the National Labor Relations Act you cannot prohibit employees from talking about topics that impact their working conditions. Where we see the overlay, in terms of political expression, is where, for example, an employee may be advocating for a particular political candidate because that candidate favors an increase in federal minimum wage or that candidate favors enhanced sick leave. In the situation, an employer could not prevent employees from discussing their political beliefs on their non-work time even if they remain on the work premises. That’s different from an employee espousing a general political belief that is not tied to a term and condition of the employee.

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Where it gets even more complicated though, is in terms of to what extent an employer can control what an employee says or what events they participate in during their non-working time off premises. There are several states that have significant limitations on this. One of the states that we are most familiar with is right here in New York, which is the Off-Duty Activities Law, which says that an employer cannot treat somebody differently because of what recreational activities they engage in. Again, the overlap here, with political speech or political activity is that the activity must be recreational to the extent of engaging in some type of political activity or a political protest can be considered recreational, then the employer could not take some action against the employee for participating.

In Connecticut, you cannot discipline or discharge an employee for the employee’s exercise of his or her first amendment rightsunless such activities or substantially or materially interfere with the employee’s bonafide job performance or the working relationship between the employeeand the employer. In North Dakota, you cannot discriminate based on an employee’s lawful activity off the employer’s premises during non-working hours which is not in direct conflict with the essential business-related interest of the employer. Again, not so much of a clear line as to what would be in the essential business-related interest of the employer.

Bottom line, employers have a lot of latitude during working time in work areas, so long as whatever prohibition they apply is applied across the board and the employer’s latitude becomes a lot less when we’re talking about employee speech or activities on premises during non-work time, and becomes even less when we’re talking about activities off premises in non-working time. Shelly, thinking about all of that though, with the anti-discrimination laws, for example, would the laws prohibiting discrimination based on religion or race have any impact on how an employer deals with an employee, either engaging in political speech at work or taking time off to go to a protest?

Shelly Gyves: They might, from a perspective of religious discrimination and with all these laws, need to be looked at on a case to case basis. From a religiousdiscrimination perspective, the threshold question is going to be whether the speech or the activities that the employee is participating in constitute religion or religious belief and that would be contrastedwithpolitical philosophyor political belief which with the expectations that we talked about before, wouldn’t be protected. The EEOC and courts have looked at this and have said that religion and religious belief relates to ultimate ideas about life and purpose.

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In the context of groups that have addressed racial issues, there have been a number of cases, for example, discussing whether participation in the KKK or espousing or belief of the KKK constitutes a religion. Generally speaking, cases have found that it does not, that the KKKs ideology is a political philosophyversus a religiousphilosophy. In contrast, there have been some groups that espousesimilarviews to the KKK, but that have a more clear indicia of religion like particular spiritual components or particular rituals. There is a movement called the creativity movement, for example, which has been found by some cases to constitute a religion. Expressed participation in that group is something that has been found to be protected.

From a race discrimination perspective, we would be thinking about both disparate treatment and disparate impact and I think here is another place where a neutral policy, a viewpoint-neutral policy, is unlikely to get you into trouble. Having some sort of policy that prohibits leaving work to attend protests generally or that prohibitsemployee participation in protests during off-duty hours, that would be protected by the off-duty activities laws that you spoke about before, Elise. Those will be fine and will unlikely to result in any sort of issue from a race discrimination perspective.

Where there are less viewpoint-neutral policies like an employer saying you can’t leave for a Unite the Right rally or a White Nationalist rally, or on the flipside, you may not participate in a Black Lives Matter event or rally. Then you have a risk of both disparate treatment and a disparate impact claim. I think a disparate treatment claim is unlikely to be successful.

Courts have generally held that even characteristics or activities that are very closely correlated with race are not considered to be race from a disparate treatment perspective. The risk of a successful claim, in that regard, is quite low. There is some risk of a disparate claim if you do have a non-viewpoint neutral policy and you would be required to show, in order to defend against such a claim, that your policy is job-related and consistent with business necessity. This goes back, again, similar to the off-duty activities laws that Elise spoke about before, it goes back this idea of how it really impacts the employee’s job or the employer’s workplace to have this policy or do not have this policy and being able to show that it’s really a business necessity to impose this non-neutral policy. Then, you also have to be able to show that there’s no alternative policy that has less of a disparate impact but achieves the same goals which may be difficult if a viewpoint-neutral policy would achieve the purpose, prohibiting protests generally rather than prohibiting particular kinds.

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Thank you for joining us on the Proskauer Brief today. Thank you, Elise, for being here as well.


© 2023 Proskauer Rose LLP. National Law Review, Volume IX, Number 56


Are you allowed to talk about politics at work? ›

According to the Nation Labor Relations Board (NLRB), private-sector employees can engage in political speech “for the purpose of collective bargaining and other mutual aid.”

Can you prohibit employees from discussing politics? ›

The California Labor Code states that employers can't prohibit employees from engaging in political activity. They also can't require employees to donate to or work for a political candidate or cause or adopt any particular political affiliation.

Can you be fired for political social media posts? ›

Although the First Amendment prevents the government from passing laws that restrict free speech, it does not protect citizens from losing their jobs over social media posts. In most instances, employees are considered “at-will” which means they can be fired for any non-discriminatory reason or no reason.

Is political speech protected in the workspace? ›

Some states have enacted laws protecting political expression in the workplace. In California, for example, employers may not retaliate against employees for their political activities or affiliations.

Can you be fired for political activity? ›

1. Are employers allowed to discriminate based on political affiliation? Under California employment law, employers may not fire you, or otherwise retaliate against you, for your political activities or political beliefs.

Can government employees post about politics? ›

2. The Omnibus Election Code, as amended, prohibits government officials and employees from engaging in any electioneering and partisan political activity and considers the commission thereof as an election offense punishable by law.

Is prohibiting the employee in the government to participate in an activity in political campaigns? ›

All members of the civil service, whether permanent, temporary, contractual or casual, who are employed in all branches, subdivisions, instrumentalities, and agencies of the Philippine government, are prohibited from engaging in any electioneering or partisan political activities.

How should HR handle political discussions at work? ›

Walk around the office periodically and listen. If you hear a political conversation in progress, politely yet firmly remind your employees that they're off task and that these discussions belong outside the workplace. If necessary, remind them that we all have different beliefs and it's OK to agree to disagree.

What is the no political activity policy? ›

The Hatch Act restricts federal employees in the executive branch from engaging in some political activities. They may not use their official authority to influence or interfere with the outcome of an election, for instance. They are also barred from engaging in many partisan political activities.

Can employees be disciplined for social media posts? ›

Courts have generally held that you lack an expectation of privacy for what you post on public forums like Facebook and Twitter, so even if you intend to keep posts private, someone may share the post with your employer and you may be subject to discipline.

Can federal employees be disciplined for social media posts? ›

The Hatch Act prohibits federal employees from sending messages through social media that advocate for a political party or candidate for partisan public office while on duty or in a federal building; engaging in such activity may subject them to disciplinary action.

What employees should not post on social media? ›

Do not allow employees to post content that could easily be viewed as obscene, threatening, intimidating, harassing or bullying. Do not allow any incorrect, confidential or non-public content about the company or your clients to be posted on social media.

What type of political speech is not protected? ›

The First Amendment does not protect speech that leads to imminent lawless action. This kind of speech has to be directed towards a specific person or group. It has to be a direct call to commit immediate, lawless action. There must be an expectation that the speech will in fact lead to lawless action.

Can an employee be fired for freedom of speech? ›

Further, because the First Amendment does not constrain private actors, private-sector workers cannot fall back on the constitution at all; even public-sector employers are often free to fire or discipline workers for their speech.

What types of speech are not protected? ›

Categories of speech that are given lesser or no protection by the First Amendment (and therefore may be restricted) include obscenity, fraud, child pornography, speech integral to illegal conduct, speech that incites imminent lawless action, speech that violates intellectual property law, true threats, and commercial ...

In what political activities can a federal employee participate? ›

Attend political rallies and meetings. Join political clubs or parties. Sign nominating petitions. Campaign for or against referendum questions, constitutional amendments, or municipal ordinances.

What constitutes politics as an activity? ›

Political activity has been defined as activity directed toward the success or failure of a political party, candidate for a partisan political office or a partisan political group.

Are employees allowed to protest? ›

All employees - union or not - have the right to participate in a protected strike, picket or protest. You have a right to strike, picket, and protest regarding work-related issues, but there are limitations and qualifications on the exercise of that right.

Can federal employees volunteer for political campaigns? ›

Generally, federal employees, unless further restricted*, may actively participate in political management and political campaigns.

Can Federal employees host political fundraisers? ›

You may not host a political fundraiser in your home (although your spouse may host an event in your home if your spouse is not a Federal employee). 3. You may not wear or post items associated with a campaign or party on Government premises.

Can federal employees express political views? ›

No Partisan Political Activity at Work* - A Federal employee may not engage in partisan political activity while: On duty (including when telecommuting or on official time for union duties).

Which type of activities are not allowed for political parties and candidates according to the code of conduct? ›

All parties and candidates shall avoid scrupulously all activities which are “corrupt practices” and offences under the election law, such as bribing of voters, intimidation of voters, impersonation of voters, canvassing within 100 meters of polling stations, holding public meetings during the period of 48 hours ending ...

What is an example of a Hatch Act violation? ›

These violations include: using official authority to interfere with an election result; soliciting, accepting or receiving political contributions; soliciting or discouraging political activity of persons before the employing agency; and running for public office in a partisan political election.

What does the Hatch Act prohibit? ›

​The Hatch Act restricts the political activity of individuals principally employed by state, District of Columbia, or local executive agencies and who work in connection with programs financed in whole or in part by federal loans or grants.

How do you deal with political people at work? ›

Eight ways to manage office politics
  1. Play nice. Courtesy, respect, politeness and office etiquette start and end with you. ...
  2. Fight fair. ...
  3. Keep your cool. ...
  4. Forgive and forget. ...
  5. Don't play favorites. ...
  6. Keep it zipped. ...
  7. Hire intelligently. ...
  8. Acquiesce.

How do you deal with staff politics? ›

Get to know your coworkers and build a professional relationship with them. Try to have at least 2-3 work friends you can count on. Remember to always be professional with your work friends. Otherwise, your personal and professional lives might blend together, which can fuel office politics.

How to stop political talk at work? ›

Decline the discussion.

The simplest way to avoid talking about politics is to simply decline inclusion in any conversation about it. By declining to participate, you'll avoid the possibility of getting caught in a controversial discussion that could cause you problems in the future.

What is the DOD policy for political activities? ›

It is DOD policy to encourage members of the armed forces to carry out the obligations of citizenship while keeping with the traditional concept that members on active duty should not engage in partisan political activity.

Can a 501 C )( 3 engage in political activity? ›

More In File

Under the Internal Revenue Code, all section 501(c)(3) organizations are absolutely prohibited from directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office.

What is it called when you support no political party? ›

Nonpartisanism is a lack of affiliation with, and a lack of bias towards, a political party.

How do you deal with toxic work politics? ›

Let's look at five ways you can help change bad politics in your office.
  1. Create a positive company culture. Company culture is the foundation of a functional, happy workplace. ...
  2. Encourage positive, open communication. ...
  3. Keep the focus on team goals. ...
  4. Assess your company structure. ...
  5. Reward the right people.
Oct 29, 2021

How to avoid talking politics at work? ›

Make sure people at work know that you're not someone who will talk about politics. By doing this, you'll minimize the chance of people purposefully including you in a conversation about politics. Don't entertain conversation about politics. Never share your political affiliation or thoughts on politics.

What should you not talk to HR about? ›

The general rule is don't bring your everyday complaints to HR. They're not there to make your job better or easier and they might fire you simply because they don't want to hear it.

Why do employees engage in workplace politics? ›

What Causes Office Politics? The motives for a person to engage in office politics are things such as the following: to sell their ideas, achieve a targeted objective, influence the organization, or increase their power.

What does it mean to play politics at work? ›

It is also known as office politics and organizational politics. It involves the use of power and social networking within a workplace to achieve changes that benefit the individuals within it.

What will be the negative outcomes for people who are seen as political in workplace? ›

Decrease in productivity: People caught up in organizational politics pay less attention to their work. Low levels of concentration: Workers who are preoccupied with their personal agendas are less likely to do their best work. Cynicism: This can lead to low morale, lower productivity, and dissatisfaction.

What is political behavior in the workplace? ›

Political behaviour consists of influence attempts that are informal in nature. Formal influence attempts that are part of one's role in the organization arc excluded from such behaviour. PB is an informal influence attempt that is discretion- ary.

How do you stop letting politics bother you? ›

Coping with Socio-Political Stress
  1. Limit Your Intake of News and Social Media. ...
  2. Maintain Your Routine and Engage in Healthy Activities. ...
  3. Practice Relaxation. ...
  4. Move Your Body. ...
  5. Recognize Your Limits. ...
  6. Engage in Healthy Communication and Seek Community. ...
  7. Acknowledge Feelings. ...
  8. Get Active.

How do you escape a toxic work culture? ›

Tips for leaving a toxic job while preserving your mental well-being, according to someone who's been there
  1. Be gentle with yourself. ...
  2. Don't feel like you have to explain yourself or justify your departure. ...
  3. Try not to take hostile responses to your departure personally. ...
  4. Remember: A toxic workplace is not your fault.
Aug 10, 2022


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