The turmoil of 2020 has encouraged many to speak out against social injustice and political passions like never before. But with the heated election year coinciding with a pandemic-induced economic recession, some workers may feel torn between expressing their social and political views to make a difference and keeping to themselves to keep their jobs. Thankfully, both state and federal law offer several layers of protection against termination on the basis of political speech alone, and employees are not hesitating to fight back against employers who attempt to silence them.
Generally, employment in the US is considered “at will,” meaning that an employee can be terminated at any time for any reason. But this general rule is subject to several qualifications. The First Amendment protects government employees—and only government employees—against interference with the freedoms of speech and assembly (e.g., protesting) when the employee is speaking as a private citizen on a matter of public concern, the public interest in which outweighs the disruption to the government employer’s operations. Recently, a bus driver for the Chicago Transit Authority (“CTA”) sued the CTA under the First Amendment after being suspended for talking to co-workers about his objections to being forced to transport police officers during protests. [1] And a group of federal employers sued President Trump in recent days for issuing an Executive Order prohibiting diversity training that Trump deems “un-American” in violation of employees’ First Amendment rights. [2] However, under the Hatch Act, federal government employees are generally prohibited from expressing their support or opposition for a political party or candidate at work, and new guidance has recently applied the Act to telecommuting situations such as wearing campaign insignia on Zoom calls and posting political content on social media while on-duty. [3]
In addition to the protections for public employees under the First Amendment, many states have enacted laws protecting private sector employees from being punished for their politics in varying degrees. For example, in both Minnesota and California, it is unlawful for private employers to prohibit employees from engaging in political activities, at least when such activities do not interfere with the employee’s job. [4]
Some political activities are protected under specific federal statutes as well. The National Labor Relations Act protects employees’ rights to advocate for better working conditions. And Title VII of the Civil Rights Act of 1964 protects employees who fight back against workplace discrimination: for example, employees of a Whole Foods store in Massachusetts recently alleged that banning Black Lives Matter masks at work violated Title VII. [5]
Finally, the terms of an employment agreement override the presumption of at-will employment. For example, an employee handbook or contract may promise that employees will only be terminated for “cause,” which may or may not be defined, or that a formal disciplinary process must be followed before termination. Employees can enforce such promises in court under contract law.
Nichols Kaster, PLLP is dedicated to fighting for employees’ rights to engage in protected activities.
[1] Mary Wisniewski, Bus driver sues CTA, says he was suspended after discussing concerns about transporting cops during George Floyd protests, Chicago Tribune (June 8. 2020), https://www.chicagotribune.com/business/transportation/ct-biz-cta-bus-driver-protests-police-20200608-htfufu2h7beznlkghjp4cqgp4i-story.html.
[2] Alexandra Olson, Trump’s diversity training order faces lawsuit, AP News (Oct. 29, 2020), https://apnews.com/article/trump-diversity-training-lawsuit-naacp-4c426e9f14fcf0618eac5d457e0d2066.
[3] Nicole Ogrysko, No — you can’t wear your political campaign shirt on a work Zoom call, OSC says, Federal News Network (May 1, 2020), https://federalnewsnetwork.com/workforce-rightsgovernance/2020/05/no-you-cant-wear-your-political-campaign-shirt-on-a-work-zoom-call-osc-says/.
[4] Minn. Stat. § 10A.36 (making it a gross misdemeanor for an individual or association to “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” unless “the political affiliation or viewpoint of the employee is a bona fide occupational qualification of the employment”); Cal. Lab. Code §§ 1101-1102 (prohibiting an employer from “[f]orbidding or preventing employees from engaging or participating in politics” or “[c]ontrolling or directing” employee political activities, including by attempting to “coerce or influence” employees’ political activity through adverse employment action).
[5] Christine Hauser, Whole Foods Punished Workers for Black Lives Matter Masks, Suit Says, NY Times (July 21, 2020), https://www.nytimes.com/2020/07/21/business/whole-foods-black-lives-matter.html.
