Here’s a quiz for the coming campaign season. Which one of these actions could get you disciplined or fired?
A. Hanging political cartoons on your office door.
B. Sending emails to your colleagues soliciting support for a controversial cause.
C. Writing a blog at home stating your opinions about a local campaign and posting it on Facebook.
D. All of the above.
The answer is D. Now, that’s not an absolute. It depends on whether you are a private or public employee. It also depends on where you live.
But if you’re a nonunion private employee, your boss has great latitude to control your political actions. As Lee Tien, a lawyer with the Electronic Frontier Foundation, put it, “You don’t have the right to speak freely in the workplace.” Or even outside it.
It’s an issue that bubbles up around every major election, said Paula Brantner, executive director of Workplace Fairness, an informational site for employees. But the combination of intense political polarization, the Internet’s power to spread and magnify seemingly innocuous or private statements, and technology’s growing ability to blur the line between workplace and home make it a conundrum for employers and employees.
So it’s crucial that workers and their bosses understand their rights and responsibilities.
Here are the two most important points:
One, for private employees, who account for about 85 percent of the workforce, the First Amendment’s guarantee offers no protection from being fired for something you’ve said – either in the workplace or outside of it, as on social media. That’s because the amendment addresses actions by the government to impede free speech, not by the private sector.
And two, while federal laws bar employers from firing workers because of such variables as their race, religion and gender, there is no such protection for political affiliation or activity.
A handful of states and localities address this issue, among them New York, California, Colorado, North Dakota and the District of Columbia. The broadest-based laws, such as those in California and New York, make it illegal to discriminate on the basis of an employees’ political activity or beliefs in or out of work, Brantner said, unless such activity interferes with the functioning of the business.
The laws also set limits on how much employers can try to influence their employees to vote for a candidate or issue.
On the other hand, anyone who works for a government office, whether local, state or federal, is for the most part protected by the First Amendment, as long an employee’s actions don’t disrupt the workplace, said Lee Rowland, a lawyer with the American Civil Liberties Union. Federal employees are also guided by the Hatch Act, which limits some political activity, such as wearing partisan political buttons while on duty or soliciting or receiving political contributions.
And workers who belong to unions generally have more protection and can be fired for only specific job-related reasons, which typically wouldn’t include political activity, Brantner said.
But if you don’t fall into any of those categories, you don’t have a lot of rights, and many workers have found that out the hard way.
Issues of what workers can do while off duty, like attend rallies and work for political candidates, have raised questions in the past, but the spotlight of the Internet has amplified the conversation, Tien of the Electronic Frontier Foundation said. Post a photo of yourself at a rally or write an online opinion piece and your boss can easily see it.
“We get calls on our complaint line about someone getting into trouble – not usually fired, but spoken to – about writing a blog” that could be seen as controversial, Tien said.
In addition, questions of when someone is actually off duty arise now more than ever, he said. “I’m talking to you from a personal iPhone from home, but I’m checking my company email on my laptop.”
It’s important to remember that even though private employees don’t have constitutional or federal protection, they do have a due process right, Tien said. So a worker being harassed for political beliefs or activity by a supervisor who was not harassing other workers might have legal recourse.
“There is a patchwork of laws, and it is incumbent upon employers to have clear rules and communicate them clearly to employees,” Rowland said.
First of all, all companies should check with their lawyers to make sure they understand federal and state laws governing what employees are allowed to do, said Ilyse Schuman, a lawyer with the law firm Littler, which specializes in employment and labor law. Then they should draw up formal and clear policies.
To make sure political activity isn’t being singled out, employment lawyers say, companies can have policies that ban all forms of solicitation, including political campaigning, in the workplace. Companies can also have dress codes that don’t allow displays of nonbusiness-related items (including political buttons, T-shirts and hats) and should have an electronic communications policy that spells out how the Internet, social media sites and so on can be used on the job.
Knowing what is and isn’t allowed under law can be tricky. For example, because the National Labor Relations Act allows workers to display labor union insignia at work, an employee can probably wear a union button that contains a political message, such as “Teamsters for Obama.”
Finally, all these issues affect people who work for others, so one would assume the dilemma wouldn’t involve the 30 percent or so of the workforce who work for themselves. It’s true, those freelancers don’t have to answer to a boss – but they do to a client.
Robin H-C (she legally shortened her hyphenated last name), found that out when she was meeting a client a few years ago. She works as a consultant in Toronto and was being hired to do a series of events by a U.S. automotive executive.
“We were in a restaurant and the TV was on,” showing the coming presidential election, H-C said. “I said I was excited that Obama was going to be re-elected.” The client’s “whole body stiffened, and it was clear he was not an Obama supporter.”
Even though the contracts were all but signed, he dropped out of sight; ultimately, she received a call from the human resources department telling her the company decided to “go in a different direction.”
“I lost $30,000 to $40,000,” she said. “The lesson was to be very aware of other people’s beliefs and to be very delicate about what could trigger them.”