Election Day in Virginia is right around the corner. Further, on the national and international stage, critical events in the Middle East and Congress (among others) dominate the airwaves. Understandably, all of these events have strong headlines – many of which evoke emotional and visceral reactions. Simply put, is difficult to tune into the news these days and not feel deeply affected by one or more issues.

But how do our thoughts or opinions on political issues translate into work? For many employers, business is considered separate from political expression. Further, even when businesses deal directly with politics, there is usually a desire to create uniformity or order surrounding certain issues.  I recommend that both employers and employees consider the following:

1. Private employers can regulate the way in which political opinions are expressed at work.  While the First Amendment protects free expression – it does not extend to political discourse for private employers. Therefore, private employers can discipline employees for expressing their political opinions – although the National Labor Relations Act provides protection for speech relating to the terms and conditions of employment. Sometimes, these two concepts will intersect, creating ambiguity as to whether an employer can impose discipline. State laws also generally prohibit dangerous or inciteful language at or relating to work.
2. Public employees and government contractors have more – but not unlimited – rights. The First Amendment provides public employees with the right to express opinions relating to their work and in many cases, regarding issues of public concern. However, the Hatch Act allows the federal government to restrict political expression (relating to, for example, a candidate for office) while on duty. The right to express related thoughts has also been extended to government contractors.
3. Employers should make clear and uniformly-enforced policies to avoid liability and promote cohesiveness. While the law is somewhat deferential to employers in the arena of political discourse, the reality remains: employees will carry their thoughts and feelings into the workplace. Therefore, I recommend that employers err on the side of communication and create policies that explain the type of social media posting, pamphlets, and meetings that are permissive on the clock (and, as applicable, off the clock). Even more importantly, I recommend that employers provide training on these issues and apply the policies uniformly in an effort to limit liability and to create an inclusive workplace.

Feel free to reach out to me about your workplace’s political speech policy.