Every election year workplaces experience an increase in political discussion amongst employees. Sometimes those discussions can get heated, especially when co-workers have differing political views and outlooks. Just what should and can an employer do to curb political discussion and activity in the workplace? The purpose of this chapter is to address that issue.
The First Amendment of the U.S. Constitution governs free speech rights. These protections of the First Amendment, however, apply only to state action. Therefore, under federal law, private employers have the ability to regulate political discourse in the workplace. While the First Amendment protections apply to public employers and protects public employee’s rights to free speech, even public employers can apply limitations that will ensure efficient operations.
In 1979, however, the Massachusetts legislature enacted the Massachusetts Civil Rights Act (MCRA). The MCRA provides a statutory civil cause of action against those who "interfere" with the exercise or enjoyment of rights secured by federal or state law - including rights that, like the right to free speech, are guaranteed by the U.S. Constitution or by the Constitution of the Commonwealth of Massachusetts. The MCRA - unlike it’s analogue under federal law, 42 U.S.C. § 1983 - reaches private conduct, in addition to conduct by state actors. Accordingly, it may restrict a Massachusetts employer's ability to regulate political speech in the workplace by providing employees with a cause of action against their employers for interfering with their right to free speech.
Under the MCRA, however, conduct is actionable only to the extent that it interferes with a secured right "by threats, intimidation or coercion." Thus, even a direct deprivation of rights is not actionable under the MCRA unless it was accomplished by one of those three means. The courts have generally interpreted these terms narrowly for purposes of the MCRA: "threats" are "acts or language by which another is placed in fear of injury or damage;" "intimidation" is the "creation of fear to compel conduct;" and "coercion" is "the active domination of another's will." While the Massachusetts courts have explicitly endorsed the view that purely economic pressures may constitute actionable coercion under the MCRA, the courts generally require that the threat, intimidation, or coercion involved a physical confrontation accompanied by the threat of harm. Indeed, the Commonwealth's highest court has held that the discharge, or threatened discharge, of an at-will employee is not "coercive" for purposes of the MCRA. In addition, Massachusetts courts have been extremely reluctant to find the requisite "threats, intimidation, or coercion" standard met in cases involving routine personnel actions.
Despite the MCRA, Massachusetts private employers can create and apply reasonable speech limitations to its workforce, provided that the limitations are expressed and applied in a manner that does not constitute a threat, intimidation, or coercion as those terms have been narrowly construed by the Massachusetts courts. Massachusetts employers can discipline or discharge an employee for violation of workplace policies, as long as the policy is applied consistently to all employees - and since the courts in Massachusetts have held that discharging an at-will employee does not constitute "coercion" under the MCRA, it is unlikely that any lesser form of discipline imposed on an at-will employee for violating a reasonable speech limitation would be found in violation of the law. In most cases, employers should reserve discipline or discharge to instances where the employee’s conduct interferes with his/her work activities or creates a disruption in the workplace.
Aside from the MCRA, discussed earlier, Massachusetts does not have a statute that addresses an employer’s ability to limit off-duty conduct of an employee with respect to political activity. Nevertheless, an employer must be very careful when regulating an employee’s off duty conduct. In general, before considering a policy or practice that regulates an employee’s off-duty political speech, an employer must determine whether there is a legitimate business reason to limit the conduct.
Examples of a legitimate business activity might include:
Absent a legitimate business reason, employers can face claims of discrimination, or claims for invasion of privacy for trying to regulate non-work-related conduct. In Massachusetts, an employer might also face a MCRA claim, although such a claim would face significant hurdles - including not just the "threats, intimidation, and coercion" requirement described above, but also the fact that the Commonwealth's highest court has held that an employer who had interfered with the exercise of its employee's constitutionally secured right of free speech did not violate the MCRA when it discharged him for making political comments, because his comments had rendered him ineffective in his job as a lobbyist for the employer.
Generally, and subject to the potential for MCRA liability described previously, employers can require that employees refrain from activities, such as campaigning, or passing out political literature during their work hours, excluding breaks and mealtime. Employers with non-solicitation policies may apply those policies evenly with respect to all areas of solicitation, including selling cookies for a child’s school fundraiser, to soliciting for political purposes. In addition, employers must be mindful of the NLRB’s protection of their employees’ rights to engage in protected concerted activity for their “mutual aid and protection.”
These rules allow employees generally to discuss the terms and conditions of their employment. Because the NLRA protects union-related activities (but not political speech), employers must take great care to distinguish between the two when establishing a non-solicitation policy.
With respect to the restriction of employees wearing badges, buttons, or other political dress, an employer may establish a neutral dress code that prohibits the employee from wearing t-shirts or other types of clothing. However, with respect to badges and buttons, the NLRA allows employees to wear badges or buttons that are related to a union or to unionization as long as doing so does not create a safety hazard, or impact another legitimate business purpose. In general, if an employee is wearing a political button that also includes a union message, employers should refrain from prohibiting that activity.
Therefore, when considering a policy to regulate political speech and solicitation, employers should consider the following:
Employer company equipment includes items such as bulletin boards, copy machines, telephones and computer systems. While employees enjoy limited rights to solicit and distribute union-related materials on company property, an employee enjoys no such right with respect to use an employer’s equipment for union or other purposes, including political campaigning.
Employers who wish to control the use of their company’s computer systems, including email, must have and regularly enforce an electronic communication policy that warns employees that the computer systems are company property which regulates the type of discussion that can take place on a computer system. Through an electronics communication policy, an employer can limit the political discourse that takes place on its computer systems. Such policies may not apply to the use of the employer’s e-mail systems for union organizing and for group discussions among employees about the terms and conditions of employment. In a 2014 decision, the NLRB held that such use of employer systems is protected by Section 7 of the NLRA.
Under federal law, employers have some ability to ask their executive or administrative personnel who are exempt from the Fair Labor Standards Act (FLSA) and have policymaking, managerial, professional or supervisory responsibilities to vote for or against a particular political candidate. This ability does not apply to the rank and file employees. However, Massachusetts law provides greater protection to Massachusetts workers. A Massachusetts statute , provides that "[n]o person shall, by threatening to discharge a person from his employment, or threatening to reduce his wages, or otherwise threatening to adversely affect the terms and conditions of his employment, or promising to give him employment at higher wages, or otherwise promising to favorably affect the terms and conditions of his employment, attempt to influence a voter to give or to withhold his vote or political contribution." Violation of this statute is punishable by a fine, imprisonment, or both. Accordingly, employers in Massachusetts are advised to refrain from making any effort to influence their employees' votes or political contributions.