The 2024 election is over, but arguments over politics are likely to continue for quite some time. Families might fight about politics at the dinner table, but what happens when political speech enters the workplace? What rights do employees have to speak about matters of political importance at work, and what rights do employers have to limit or restrict such speech? The answer depends, in part, on whether an employer is public or private. Public employers are subject to the First Amendment’s free speech provisions. Private employers are not, but they are still subject to limitations regarding restricting political speech. Federal and New Jersey employment laws allow employees to discuss certain issues at work, some of which may be deemed political.
Public Employers
The First Amendment states, in part, that the government may not “abridg[e] the freedom of speech.” This protection only applies to actions by or on behalf of the government. Public employers, as part of the government, are bound by the First Amendment. This does not mean that public employees have an unlimited right to speak their minds without concern for their jobs.
First of all, public employers have a right to maintain a professional and orderly workplace. Employees do not have a First Amendment right to speak in ways that disrupt their employer’s ordinary operations. This is similar to how governments can regulate the time and place of certain types of speech. A person can hold a rally in a park in the afternoon, for example, but not at 2:00 a.m. on a residential street.
Public employers also have an obligation to all of their employees to maintain a safe work environment that is reasonably free of unlawful harassment and similar concerns. Speech that constitutes sexual harassment or harassment based on another protected category could get a public employer in trouble under Title VII of the Civil Rights Act of 1964 or the New Jersey Law Against Discrimination (NJLAD).
When public employees want to speak out on “issues of public importance,” however, their employers must let them, with two important exceptions:
– They are “knowingly or recklessly” making false statements; or
– They are purporting to speak on behalf of the government, not just themselves.
Private Employers
Private employers are not bound by the First Amendment when it comes to employee speech, but they have some limits set by statute and caselaw. Under the National Labor Relations Act (NLRA), for example, employers cannot interfere with employees engaged in organizing and related activities. This often includes discussing matters of political importance. Whistleblower protection laws prevent employers from penalizing employees who report suspected wrongdoing or cooperate in government investigations.
When private employers try to limit other types of political speech in the workplace, they must be consistent about it. If they do not want employees discussing a Black Lives Matter protest, they may violate Title VII and the NJLAD if they do not stop other employees from discussing other political issues. They also have an obligation to prevent harassment and discriminatory speech in the workplace.
If you believe your employer has engaged in unlawful activities in New Jersey or New York and violated your rights, you need an experienced employment lawyer on your side. The Resnick Law Group can advise you of your rights, help you understand your options, and work to recover the compensation owed to you. Schedule a confidential consultation with us today through our website or by calling 973-781-1204 or 646-867-7997.