Article by: Law Clerk Jose De Luna
Over the next two months, the election cycle will peak in terms of community participation and tension. To vote and be politically informed are acts of patriotism which are foundational American values. On the other hand, the political divide has increased friction not just in this country, but all around the world. More than ever, employers, private and public, are motivated to regulate politics in the workplace. What exactly can public employers do to regulate political activism and how should employers go about it?
Regulating Political Activism in the Public Sector
The First Amendment, among other rights, guarantees freedom of speech. The First Amendment only protects citizens from government action not private action. The landmark case, Pickering v. Board of Education, established that public employees, as citizens, have a right to speak about matters of public concern. Pickering v. Board of Education, 391 U.S. 563 (1968). Speech in relation to politics, elections, and political views are exactly the kinds of public concern that the case enshrined as a protected right. However, the case did include a safeguard for the state by establishing a balancing test. Courts must weigh the balance between the interests of the employee to speak on the matter and the state, as an employer, in promoting the efficiency of public services it performs. The crux of the balance is essentially how disruptive the employee’s speech is. In a more recent case, after the 2016 election, a public employee posted the following, “Thank god we have more America loving rednecks. Red spread across all America.” Bennett v. Metropolitan Gov’t of Nashville and Davidson Cnty., Tennessee, 977 F.3d 530 (6th Cir. 2020). Under Pickering, this would be the kind of speech that is certainly protected. However, the employee’s post did not end there, as it continued with a racial slur against African Americans. The court found there to be sufficient disruption caused to the employers facilitation of its duties for the balance to tip in their favor and her First Amendment claim was dismissed.
The above cases highlight the limited role that state employers have in regulating political activities of their employees outside of work, but what about political activity while on the clock? Chapter 556 of the Texas Government Code places restrictions on the political activities of certain state agencies and individuals. State agencies include departments, commissions, boards, offices, or other agency in the executive branch of the state government created under the Texas Constitution or statute. The primary restrictions include:
Whether in a classroom or a city office, state agencies should execute extreme caution with their employees’ political conduct while on duty so that is not conflated with the state supporting a candidacy, influencing an election, or coercing contributions for a political purpose. Regulatable conduct during working hours includes the use of posters, flags, pamphlets, t-shirts, social media posts on-duty, and potentially background objects during virtual meetings.
Regulating Political Activism in the Private Sector
The right of freedom of speech does not grant protections to private employees from their employers. As an “at-will” employment state, Texas employees may generally be terminated at any time for any reason, or even no reason at all, absent a contract that states otherwise. This means that private employers may refuse to hire or fire an employee based on their political views or expressions. It does not matter whether the political activism is expressed within or outside of the workplace.
The state of Texas has enacted certain statutes which protect employees voting rights from employer actions. Section 276.001 of the Election Code creates a criminal offense if, in retaliation against a voter who has voted for or against a candidate or measure, or a voter refuses to reveal how they voted, the person knowingly harms or threatens to harm the voter unlawfully; or in the context of employment, subjects or threatens to subject the voter to a loss or reduction of wages or another benefit. Furthermore section 276.004 of the Election Code makes it unlawful when an employer refuses to permit the employee to vote on election day or during early voting, or penalizes or threatens the employee with penalty for voting early or on election day. There is an exception to the 276.004 when polls are open for two consecutive hours outside of the voter’s working hours.
Taking the Texas statutes together with the nonexistence of freedom of speech in the private sector, employers may terminate or penalize employees for their political views and expressions. This can range from hanging a “MAGA” flag in the office to making pro Harris-Walz posts on Facebook. Private employers should however, take caution in taking direct action because of how an employee voted and limiting their right to vote.
Another exception to the broad rights of private employers to regulate political speech is the National Labor Relations Act (“NLRA”). This is a federal law that protects most private employees who engage in collective bargaining, seek better working conditions, and form, join, or assist labor unions. For employees to be protected, the political speech must be (1) concerted; (2) have a close nexus between the political expression and employment; and (3) involve the terms and conditions of employment. Because of the NLRA, private employers in Texas should be cautious and seek legal advice when employees’ political activities involve speaking about working conditions and labor unions, as this may be protected.
How To Handle Political Speech
Be proactive. The election season is on the minds of millions of citizens, and passions will continue to run high through election day. Employees and employers, whether public or private, should have clear communications about internal guidelines regulating political speech and state or federal laws that may be controlling on the issue.
Private employers in Texas have broad rights in employment decisions based on employees’ political activism. However, private employers should not engage in actions that threaten or penalize employees because of how they voted or to reveal who an employee voted for, as this is a felony. Similarly, private employers must still allow employees to take time for voting unless there is a two-hour period outside of work when the polls are open. Maintaining a politics-free workplace is often in the best interests of employers. This can help appeal to the broadest possible client base and also maintain harmony in the workplace. Private employers should seek legal guidance to draft policies and procedures to put this into practice.
Was the political activity during working hours or on the employee’s private time? The answer may affect whether a public employer may regulate the political activism, absent a showing of a significant disruption to the employers services. Public employers must regulate political speech even-handedly, regardless of stance or affiliations employees express. Failing to do so may give rise to costly equal protection claims. Furthermore, disciplinary procedures should be applied consistently in substantially similar violations of policies. Public employers should seek legal advice if there are questions on whether their regulation of political speech will infringe on free speech rights or if they are unsure when law requires regulating conduct.
As election day draws nearer, all employers are encouraged to analyze how the political activism of their employees may impact their private business or public entity, and assess what measures should be taken in response.
