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The Legality of Talking Politics at Work: Everything You Need to Know

We live in a very polarized political environment in our society these days. Whether it is a Supreme Court nomination, elections or some other current event. People seem to have strong opinions about issues and feelings can easily be hurt when there is a discussion about politics, social issue, religion or current events. These discussions in the workplace can lead to conflict in the workplace and both employers and employees need to be aware of the law if this situation escalates to the point of conflicts between employees.

As an employer or an employee, it is important to know what is and isn’t permissible speech in the workplace. Both the employer and employee want to work in a congenial and productive workplace. Employers or Employees who argue and spend their time arguing about issues on any subject can become disruptive and cause conflicts in the workplace. Employers must consider several things before disciplining an employee for speech in the workplace and employees must know their rights before voicing their political opinions in the workplace in order to avoid being disciplined or terminated.

To many people’s surprise employees do not have freedom of speech protections under the First Amendment of the U.S. Constitution. First Amendment rights apply to federal, state and local government entities and to their employees, but do not extend to private sector employers. Although private-sector employees are not protected by the First Amendment, many states prohibit employer adverse actions based on employee political activities and expressions. Employers generally can limit political discussions that disrupts the workplace, and employees should be careful not to be disruptive in the workplace by getting into heated arguments with other employees about political opinions. Employees must realize that their freedom of speech rights have some limitations in the workplace.

With regard to federal law the National Labor Relations act (NLRA) protects certain kinds of speech if it is considered “concerted activity”. The term “concerted activity” is not defined in the NLRA. Courts have interpreted concerted activity in reference to Congress’ intent to equalize the bargaining power of the employee with that of his employer by allowing employees to band together in confronting an employer regarding the terms and conditions of their employment. The NLRA does protect some employee speech, but that protection is quite limited. Section 7 of the National Labor Relations act which applies to both unionized and nonunionized nonsupervisory employees in the private sector provides that employees have a right to engage in concerted activities for the purpose of mutual aid or protection. If the employee expression was made for the mutual aid or protection of others in a group of employees, then discipline or termination may violate the NLRA. For example, an employee’s participation in a strike, or wearing buttons or clothing displaying slogans that protest working conditions, may constitute a concerted activity protected by the NLRA.

As for State law Minnesota provides much more protection for employees than federal law. Minnesota law makes it a crime to try to prevent, restrain, or influence an employee’s political activity by threatening discharge or otherwise trying to prevent the conduct.  Minnesota law also provides protection for political activity, political-party affiliation, campaign contributions, and exercising the right to vote.

Minnesota state law also prevents employers from interfering with employees’ political activities or lawful conduct, which includes employees’ political contributions or political activity. Minnesota law needs to be considered before disciplining our terminating employees for political speech. Minn. Stat. Ann. § 10A.36 states:

“An individual or association must not engage in economic reprisals or threaten loss of employment or physical coercion against an individual or association because of that individual’s or association’s political contributions or political activity. This subdivision does not apply to compensation for employment or loss of employment if the political affiliation or viewpoint of the employee is a bona fide occupational qualification of the employment. An individual or association that violates this section is guilty of a gross misdemeanor.”

Employers may also not retaliate against employees for engaging in protected activity, which includes certain speech and expression. For example, protected activity includes:

  • Lodging an internal complaint (written or verbal) with human resources or management regarding discrimination based on race, color, national origin, sex (including pregnancy), religion, age (18 to 70), physical or mental disability, genetic information, marital status, sexual orientation, gender identity, or receipt of public assistance. Complaints are not protected, however, unless they are specific enough to put the employer on notice that the employee is opposing discriminatory or unlawful conduct.
  • Filing administrative complaints with state or federal government agencies are protected activity.
  • Participating in an internal investigation of discrimination, harassment, work place safety or other protected activities affords the employee protection from retaliation for making truthful statements and statements the employee reasonably believes to be true.
  • Supporting another employee’s complaint of discrimination, harassment, whistleblower or retaliation for supporting some other protected activity.
  • Telling co-workers of intent to file a complaint or expressing support of co-workers who have filed formal charges.

There are other laws that protect speech in general. Whistle blower statutes protect certain type of speech. When an employee with a reasonable belief complains about the wrongdoing by the employer the employer may not retaliate against the employee. Some of the whistleblower statutes that would protect speech by an employee are listed on the U.S. Department of Labor’s website. https://www.whistleblowers.gov/statutes.

Employers must also keep in mind policies that prohibits an employer from terminating an employer for a reason that violates public policy. Minnesota courts have recognized a common-law cause of action for “wrongful discharge in violation of public policy.” This includes termination in violation of “clear mandates of legislative or judicially recognized public policy.” Phipps v. Clark Oil & Refining Corp., 396 N.W.2d 588 (Minn. Ct. App. 1986).

Finally, the employer should always be aware of making sure that its policies regarding disciplining employees does not violate anti-discrimination and anti-harassment policies. Federal law prohibits employers from firing employees based on race, color, national origin, sex (including pregnancy), religion, age (if the employee is at least 40), disability, citizenship status, or genetic information. Minnesota law prohibits employment discrimination based on race, color, national origin, sex (including pregnancy), religion, age (18 to 70), physical or mental disability, genetic information, marital status, sexual orientation, gender identity, or receipt of public assistance. All Minnesota employers, even those with only one employee, must comply with the state’s discrimination laws.

If the political climate in your workplace becomes hostile it is important to know what the law allows and doesn’t allow regarding speech in the workplace. If an employee is being disruptive or not doing their job and arguing about politics, making racist or bigoted comments or threatening violence that employee can be disciplined and terminated for their speech. Instead of enacting policies that would prevent employees from expressing their opinions the employer is best advised to enforce rules regarding workplace productivity, safety, getting along with co-workers, anti-violence, anti-discrimination, and anti-harassment policies.

You should contact an experienced employment attorney if you have questions regarding protected speech in the workplace. Contact Holden Law Firm and ask to speak to John Holden to discuss your employment law questions.

John C. Holden, Esq.

Holden Law Firm

6600 France Ave. South, Suite 465

Edina, MN 55435

952-345-8272

John@holdenlawfirm.com

www.holdenlawfirm.com

 

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