“You Don’t Say?!” Political Speech in the Private Sector Workplace
Another election season is upon us. That means that there may well be spirited discussions around the workplace water cooler or on social media as we express opinions on candidates and political issues.
The First Amendment to the U.S. Constitution generally protects the fundamental right to free speech: “Congress shall make no law . . . abridging the freedom of speech.” But the First Amendment does not apply to private employers, who can generally fire employees for their political activities or affiliations.
Generally, employees in the private sector do not have a constitutional right to free speech at the office. But employers still need to be aware of federal and state laws that protect workers’ speech in certain situations. For example, the Wisconsin Fair Employment Act prohibits discrimination against employees because the individual declines or refuses to participate in religious or political meetings or religious or political communications. This means that an employer may not require an employee to attend a political or religious meeting as part of the employee’s job activities.
Similarly, an employer may not interfere with an employee’s right to engage in concerted activity or for mutual aid or protection. Such speech is protected from retaliation under the National Labor Relations Act. This right to engage in concerted activity applies to workers in both union and non-union settings. Federal law protects the right to engage to speak with fellow employees about matters pertaining to wages, hours, and conditions of employment in the workplace.
WISCONSIN EMPLOYMENT PROTECTIONS FOR POLITICAL ACTIVITY
Although Wisconsin does not have a law that prohibits discrimination on the basis of political affiliation, the law that protects the right of employees to decline meeting attendance is a measure of worker protection.
Employment discrimination because of declining to attend a meeting or to participate in a communication about religious or political matters includes discharging or otherwise discriminating against an employee because the employee declines to attend an employer-sponsored meeting or to participate in any communication with the employer or with an agent of the employer, where the primary purpose is to communicate the opinion of the employer about religious matters or political matters. Wisconsin employers are advised to be cautious about trying to corral employees into political discussions. It is also a discriminatory practice in Wisconsin for an employer to threaten to discharge or otherwise discriminate against an employee as a way to require the employee to attend the meeting or communication described above.
The rules recited above do not apply if the employer is a religious association not organized for private profit or in an organization or corporation that is primarily owned or controlled by such a religious association and the primary purpose of the meeting or communication is to communicate the employer’s religious beliefs or practices. The law that make it unlawful to discriminate as described above also does not apply to a political organization including a political party, like the Democratic party or the Republican party.
Under the law, an employer still has the right to discuss with its executive, managerial or administrative personnel matters relating to the operation of the employer’s program, business or enterprise, including issues that may arise under the law that limits discrimination from mandatory meeting attendance or communications. An employer may offer meetings or other communications about religious or political matters for which attendance is completely voluntary.
In conclusion, speech in the private sector employment context is not as easy as it might first appear. Employees do have certain rights to discuss topics related to the workplace. But in Wisconsin, employers may discriminate on the basis of political affiliation, even though an employer may not require attendance at political or religious meetings. If you feel that you are in the middle of a legal minefield when it comes to political or religious speech in the workplace, it is best to contact your employment lawyer for advice and consultation.