Ask most Americans and they’ll tell you that there are few rights more important than that of the freedom of speech. Free speech is often viewed as fundamental to democracy, but is it also fundamental to a functioning workplace?
It’s no secret that political speech has become more volatile and prevalent in recent years. As Americans have found less and less that they agree on, political speech and arguments seem to break out just about anywhere, including in the office or online through social media. This speech can cause conflict while at work and can sometimes damage or alter an employer’s image to the general public. So, the question becomes, what can an employer do to limit such speech?
Federal Protection
Most Americans know that free speech is protected by the First Amendment. However, the First Amendment only protects speech from government action. As most businesses are private employers, they do not need to worry about violating the First Amendment. Political affiliation is also not a protected class under federal or Ohio law. This means that private employers have considerable latitude to govern the speech of their employees. Generally, private employers may refuse to hire employees based on their political views and their expression of these views. Since most employees are hired “at-will” (meaning the employee can be fired for any lawful reason), political expression can also be the basis of an employer terminating an employee’s employment in most circumstances. However, there are notable exceptions.
The primary source of employee protection under federal law is the National Labor Relations Act (NLRA). The purpose of the NLRA is to protect concerted activity, such as the right to collectively bargain, the right to organize, and the right to strike. Importantly, the NLRA applies to non-union workers as well as union workers. This may indirectly protect employee political expression if such expression can be tied to protected concerted activity under the NLRA. For example, if a political speech is expressed by an employee at a protest that falls under protected concerted activity (such as a protest to raise company wages), then the employer cannot take adverse action against the employee without exposing itself to an unfair labor practice claim. Further, some political issues, like discrimination or minimum wage, are interrelated with employment issues and may also fall under the protection of the NLRA.
State Protection
At the state level, some states have laws in place that protect political expression from employer retaliation. These include states such as California, New York, Colorado, Minnesota, Connecticut, Louisiana, South Carolina, and Wyoming. Notably, Ohio does not have any state-level employee protection for political expression by employees of private employers. Though Ohio employers are prohibited from influencing political opinions or votes by threat or coercion.
Other Considerations
Even though political speech has limited protection, the termination of employees based on political expression can still expose an employer to liability. This is due to political expression often being closely tied to protected classes, such as race, age, religion, and gender. Therefore, if an employer is going to take action against political speech, it should enforce this policy neutrally. For example, if an employer takes adverse action against employees that express pro-choice views, then the employer should take the same action against employees that express pro-life views. To only target certain kinds of political speech could lead to discrimination claims against the employer. The focus of policies against political speech should be on the adverse behavior that such speech can cause, such as disruptions in the workplace, and not on the actual opinions being expressed.
It’s not only employees who should be careful with their political expression. Management should also watch what they say regarding politics. Political opinions shared by a manager could put pressure on employees even if the manager’s statements are not necessarily coercive. Since there is a power dynamic in manager-employee relationships, this type of political speech could potentially open the employer to claims of discrimination, retaliation, or a hostile work environment.
Conclusion
The protections afforded to political expression against the actions of private employers in Ohio are limited. These protections mostly derive from laws intended to protect certain groups or types of expression, such as the NLRA or anti-discrimination laws. While some states do offer protection at the state level, most, including Ohio, do not.
Free speech is a right given to American citizens. Barring very specific circumstances, an American cannot be imprisoned, fined, or otherwise treated adversely by the United States government based on what they say. This protection does not extend to private employers. So, while there are plenty of benefits to political expression, job security is not among them.
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