As the political climate becomes increasingly volatile, employers may expect their employees to engage in political discourse both within and outside the workplace. Even if it occurs off-duty or online, such discourse could result in contentious exchanges that have the potential to impact workplace productivity and culture. Fortunately, private employers have wide (though not unlimited) discretion to set policies regulating behavior, including political speech, within the workplace. This article addresses a more complicated question: whether an employer can regulate off-duty political conduct and speech. While federal law does not provide explicit protections for off-duty political speech, several states have statutes aimed at protecting an employee’s ability to engage in lawful off-duty political speech or conduct.
Initially, federal law does not explicitly protect political expression as it relates to the private workplace. The First Amendment, while constraining government restrictions on speech, does not restrict limits on speech or political conduct by private employers. Likewise, federal anti-discrimination laws, the Occupational Safety and Health Act (OSHA), and the National Labor Relations Act (NLRA), which protect the rights of employees to engage in concerted activity about wages, hours, and other terms and conditions of employment, do not directly prohibit discrimination or retaliation on the basis of political affiliation, speech, or activities. Nevertheless, it is conceivable that the NLRA, Title VII, or OSHA, for example, could be implicated if the objectionable conduct or speech related to workplace policies such as DEI or safety, even if the conduct occurred off-duty.
In contrast, several states have enacted laws that directly limit a private employer’s ability to address conduct or political speech that occurs when an employee is not at work. For example, California, Colorado, Connecticut, Louisiana, Minnesota, New York, South Carolina, North Dakota, and Wyoming have laws that prohibit employers to some degree from disciplining or discharging employees for engaging in lawful, nonthreatening off-duty political speech and conduct. Though the laws vary, very generally they protect employees from discrimination, retaliation, or discharge based on lawful political speech or activities that occur outside of work and that do not unreasonably interfere with workplace operations. Certain laws also protect activities that are not overtly political but have been the subject of at least some political debate in recent years, such as cannabis use.
For example, Section 201-d of the New York Labor Law prohibits discrimination as a result of “an individual’s political activities outside of working hours, off of the employer’s premises and without use of the employer's equipment or other property, if such activities are legal.” N.Y. Lab. Law § 201-d(2)(a). The statute defines “political activities” as “(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.” Id. § 201-d(1)(a). Colorado’s off-duty conduct statute does not specifically mention political speech or conduct but rather broadly prohibits the discharge of an employee for engaging in “any lawful activity off the premises of the employer.” Colo. Rev. Stat. § 24-34-402.5. The Colorado Supreme Court has interpreted “lawful activity” to mean conduct that is legal under both state and federal law, though courts in different states adopt differing interpretations.
As a result, as with other forms of behavior, employers generally can impose reasonable restrictions on political speech and expression that occurs both on and off its premises to preserve productivity, safety, workplace culture, or the employer’s reputation. As with discipline for other forms of off-duty conduct, employers considering disciplining employees for off-duty political or other conduct should not act rashly without an understanding of the applicable law, the nature of the employee’s actions, and an evaluation of its impact.
Before disciplining an employee for off-duty political conduct, employers should first confirm whether their state restricts employer action on such conduct. Second, employers should evaluate whether the behavior violated any policy or otherwise detrimentally impacts the employer’s business or reputation. In this vein, workplace policies related to off-duty political speech should be informed by these state-by-state protections and should clearly outline prohibited behaviors and the consequences for engaging in those behaviors. Critically, too, policies should be enforced fairly and consistently throughout the organization to avoid claims of discrimination and retaliation.
If you’re an employer with questions about how to address political speech in the workplace, you are invited to contact the authors of this article or any other attorney in Venable’s Labor and Employment Group.