By Karla Grossenbacher and  Scott Mallery

Seyfarth Synopsis:  In six months, the U.S. presidential election will take place and inevitably employee views on the elections and election issues will make their way into the workplace.  In today’s highly polarized socio-political landscape, the intersection of workplace dynamics and individual politics often causes disruptions in the workplace.  When confronted with these issues, employers must tread carefully when considering how to respond, if at all, to the political activities of their employees. While navigating this terrain, it is crucial to understand the state laws that restrict an employer’s ability to take action against an employee based solely on their political activity.

The United States has a patchwork of laws governing an employer’s ability to restrict or regulate employee political expression.   At the federal level, the First Amendment guarantees individuals the right to freedom of speech.  However, such constitutional protections generally do not apply in private-sector workplaces.  In light of this lack of federal protection for political speech in a private workplace, several states have enacted laws to safeguard private employees from adverse employment actions based on their political beliefs or activities.

For example, some states have laws that explicitly prohibit employers from taking adverse employment actions against employees based on their political activities outside of work.  These statutes vary in scope and application.  Some states provide broad protections for employees’ political activities, like California, and others offer more limited safeguards or none at all, like New York.  Additionally, some laws concerning employer action in response to employee political activity allow for certain exceptions, such as when an employee’s political activities are a bona fide occupational qualification or interfere with an employee’s job performance.

There are also a handful of states with laws that generally prohibit taking adverse action against employees based on lawful off duty conduct, which could also apply to political activity.  In these states, even if there is a question as to whether or not the employee’s conduct was “political” in nature, there would still be a restriction on the employer’s ability to take action against the employee because of it.  Some states, such as California, Colorado and New York, have both lawful off duty conduct law and laws restricting employer action in response to employee political activity.

In terms of laws restricting adverse employment action in response to employee political activity, unsurprisingly, California provides arguably the strongest statutory protections for engaging in political activity.  California Labor Code section 1101 provides that “No employer shall make, adopt, or enforce any rule, regulation, or policy: (a) Forbidding or preventing employees from engaging or participating in politics. . . . (b) Controlling or directing, or tending to control or direct the political activities of affiliations of employees.” Similarly, section 1102 of the same Code states that “[n]o employer shall coerce or influence . . . his employees . . .  to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.” California courts have adopted a broad interpretation of what constitutes “political activity” for purposes of the statute.

Colorado and New York have prohibitions that are more narrowly drawn when it comes to an employer’s ability to regulate employee political activity.  Colorado law prohibits employers from regulating off-duty conduct, including “preventing any of his or her employees from engaging or participating in politics or from becoming a candidate for public office or being elected to and entering upon the duties of any public office.” Colorado courts have not had much occasion to analyze this statute.  New York’s statutory protections for engaging in off-duty political activities is drawn even narrower than the Colorado statute. Specifically, New York Labor Law section 201-d(2)(a) provides that it “shall be unlawful for any employer or employment agency to . . . discriminate against an individual in compensation, promotion or terms, conditions or privilege because of an individual’s political activities outside of working hours. But the statutes express definition of political activity limits the statute’s protections to “(i) running for public office, (ii) campaigning for a candidate for public office, or (iii) participating in fund-raising activities for the benefit of a candidate, political party or political advocacy group. N.Y. Lab. Law § 201-d(1)(a).

In addition, state anti-discrimination laws may intersect with political speech in a number of ways. Some jurisdictions, like the District of Columbia, prohibit discrimination based on political affiliation.  Employers cannot allow speech and expression to create a hostile work environment.  Of course, harassment can arise based on what individuals say, but are based on displays of symbols that are considered offensive, harassing, or intimidating.  For example, the EEOC and some courts have found that displays of the confederate flag may contribute to a “hostile work environment” that can be demeaning, intimidating, or harassing toward employees on the basis of their race.  To the extent an employer has workplace policies in effect that touch on political activity, it is important that they are uniformly enforced, regardless of an employee’s protected characteristics. Selective enforcement of workplace policies against some political speech risks claims of discrimination or harassment even in those states where political affiliation is not a protected classification.

Employers operating in multiple states or with remote employees must be cognizant of the differing legal landscapes across the states in which they have employees and tailor their actions accordingly. A thorough understanding of the relevant state laws is crucial for crafting compliant employment policies and avoiding potential legal pitfalls.  State laws play a significant role in shaping the relationship between employers and employees concerning political expression in the workplace. Employers must stay informed about the specific regulations applicable in their jurisdiction and proactively address any compliance issues.