Can an employer regulate its employees' political speech or activity in the workplace?

At this time of the year, this is an interesting and relevant question for employers. The closer we get to Election Day, the more likely we may see political activities breaking out in our workplaces. These can be loaded exchanges. A civil discussion about a political affiliation can turn volatile at the drop of a tweet – or a post, or an X, a squeeze, or whatever it is. In today's climate, people get easily fired up when discussing reproductive rights, global conflicts, the economy, gender-affirming care, pronouns, and of course, candidates.

So what's an employer to do if this activity negatively impacts its workplace? An employee appears in a social media post about attending a rally that other employees disapprove of, for example.

The first consideration is the First Amendment. It does secure essential rights, freedom of speech, the right to assemble, but it does not apply to a private employer's ability to regulate employee activity. Though that may not apply, your jurisdiction may have broad statutory protections. Certain states prohibit employers from taking action against employees based on their lawful off-duty conduct. In these places, employer action limiting employee political expression requires careful consideration.

Also, consider the National Labor Relations Act. Even non-union employees may not be retaliated against for discussing concerted activities of a political nature when those discussions relate to the terms or conditions of their employment, such as minimum wage or pay transparency. Add the words "equal pay for all" to a provocative political pin, and you may need to take a step back.

So the next time an employee shows up at work wearing a political pin - or appears in a controversial social media post - and the employer feels the impulse to do something, consider whether any state or federal limitations on political activity or lawful off-duty conduct exist. Evaluate the nature of the speech and the extent to which it unduly disrupts the workplace. Assess whether the speech violates company policy. Racially offensive comments or hate speech, even if ostensibly political - or even quoting a politician for that matter - may be subject to discipline. Ask whether the conduct is protected under the NLRA. And whenever possible, consult counsel before taking action. Happy voting.