Workplace political speech and social media: Key pitfalls for employers and employees

With the polarizing 2024 Presidential election quickly approaching, private employers and employees alike should be mindful of the protections and limitations on speech in the workplace and speech related to it, including on social media platforms. If limitations are not managed respectfully, political discussions in the workplace can not only become heated and distract employees but also negatively impact morale, permanently damage previously productive working relationships, and even lead to liability.


CALIFORNIA PROTECTIONS FOR POLITICAL SPEECH AND SOCIAL MEDIA IN THE WORKPLACE


Because the First Amendment restricts government action, private employers are generally not prohibited from regulating employee speech at the federal level. However, some states, including California, provide some protections for employees engaging in political speech. For example, California Labor Code § 1101 prohibits employers from preventing employees from participating in politics, including becoming candidates for office or seeking to control or direct employees' political activities or affiliations. Similarly, Labor Code § 1102 prohibits employers from coercing or influencing employees by threatening loss of employment or preventing them from following or refraining from adopting or following political actions or activities. Thus, employees may, for example, advocate for LGBTQ+ rights or persons with disabilities free from interference from employers. See Gay L. Students Assn. v. Pac. Tel. & Tel. Co., 24 Cal. 3d 458, 488, 595 P.2d 592, 611 (1979) (superseded by statute subsequently found unconstitutional); Ross v. Indep. Living Res. of Contra Costa Cnty., No. C08-00854 TEH, 2010 WL 1266497, at *6 (N.D. Cal. Apr. 1, 2010).


Although employers are not required to provide resources for employees to engage in political speech online, employees may receive or send politically-related communications via their personal social media. California Labor Code §980 prohibits employers from asking for employees' or applicants' personal login credentials to social media or other online accounts, asking employees to access their social media in the employer's presence (known as "shoulder-surfing"), requiring that employees divulge their personal social media, or retaliating against employees or applicants who refuse to disclose their social media. However, employers are permitted to ask employees to divulge their social media if it is believed to be relevant to an investigation of allegations of employee misconduct or violation of laws or regulations and if social media is only used for the investigation or related proceedings. Regardless, employers should take care whenever viewing or using employee or applicant social media, as improper handling can lead to claims for, among other things, discrimination. 


FEDERAL PROTECTIONS FOR WORKPLACE POLITICAL DISCOURSE ARE LIMITED


Political discussions during working time may be outside the jurisdiction of the National Labor Relations Board (NLRB) unless related to wages, hours, or other working conditions. While employees have rights to organize and engage in concerted activities free from restraint under Sections 7 and 8 of the National Labor Relations Act (NLRA), the NLRB's guidance on Social Media makes clear that to qualify as protected concerted activity, employees have the right to address work-related issues and share information "about pay, benefits, and working conditions with coworkers on Facebook, YouTube, and other social media." National Labor Relations Board, Social Media, available at: https://www.nlrb.gov. Thus, union-sponsored newsletters circulated in nonworking areas of the employer's property outside of work hours, which urged employees to write their legislators to oppose the incorporation of the state's right-to-work statute into the revised state constitution as well as criticize the presidential veto of an increase in the federal minimum wage and urging employees to register to vote was protected by the "mutual aid or protection" clause of Section 7 of the NLRA. Eastex, Inc. v. N.L.R.B., 437 U.S. 556, 98 S. Ct. 2505, 57 L. Ed. 2d 428 (1978). 


However, "individually griping about some aspect of work" is not considered a concerted activity, and complaints must bear a relationship to group action. Thus, statements that are highly offensive, knowingly false, or publicly disparage an employer's products or services unrelated to work complaints or labor disputes are not protected. National Labor Relations Board, Social Media, available at: https://www.nlrb.gov. Thus, the NLRA may not protect political speech at work that is wholly unrelated to the interests of employees and the NLRB would likely dismiss an unfair labor practice charge against an employer who sought to restrict political speech during working time.


Notably, offensive, knowingly false, or disparaging statements may serve as a basis for defamation or business interference claims by employers or other employees. Although statements made in litigation related to an employment dispute are protected by litigation privilege, that privilege generally does not extend to extra-judicial statements that do not promote the goals of the litigation. See Rothman v. Jackson, 49 Cal.App.4th 1134, 1149 (1996) ("we hold that the litigation privilege should not be extended to 'litigating in the press.'"). Accordingly, employees should exercise caution when posting on social media, even if those posts may be related to wages, hours, or other working conditions.


LIMITS OF "POLITICAL" SPEECH IN THE WORKPLACE


Political speech poses a significant liability risk to employers if not handled correctly. Indeed, under Federal and California state law, employers must stop certain types of speech, regardless of whether it is couched in an alleged political message, to ensure that the workplace is free from discrimination, harassment, or retaliation. This is a particularly complex issue in the increasingly divisive political climate, especially considering that some widely publicized statements by political candidates, if repeated in the workplace, could lead to employment-related claims, like discrimination. For example, an employee referring to a woman as a "bimbo" or other degrading term, discussing sexual acts, calling Mexican immigrants as "rapists" or Black Lives Matter activists "thugs," referring to members of the LGBTQ+ community as "groomers," among other things, would lead to workplace complaints and possibly discrimination or other claims by other employees based on a variety of immutable characteristics, where a political candidate would not be subject to the same consequences.


While some employees may contend that they are exercising their right to free speech by repeating politicians' statements, the First Amendment is not applicable because private employers' restrictions on political discussions are not government actions. Indeed, courts have found that Title VII's restrictions on certain speech do not violate the First Amendment, and thus, the First Amendment does not excuse employers from complying with Title VII. This is because, among other things, employers do not express themselves through employees' discriminatory speech; such speech amounts to discriminatory conduct, the regulation of discriminatory speech is a time, place and manner restriction, the law is narrowly drawn and serves a compelling government interest, and other workers would be a captive audience harmed by the discriminatory speech. Baty v. Willamette Indus., Inc., 172 F.3d 1232, 1246 (10th Cir. 1999) (overruled on other grounds), citing Robinson v. Jacksonville Shipyards, Inc., 760 F.Supp. 1486 (M.D.Fla.1991); see also Aguilar v. Avis Rent A Car Sys., Inc., 21 Cal. 4th 121, 980 P.2d 846 (1999) (injunction issued against the manager for FEHA violations for using racial epithets was not a prohibited prior restraint on speech). 


CONCLUSIONS


To comply with the California Labor Code and maintain a productive and respectful workplace despite the ever more hostile political atmosphere, employers should enforce preexisting policies against harassment, discrimination, and retaliation in the workplace whenever speech, political or otherwise, may also violate Title VII, FEHA, or other laws. However, any policies employers develop should be tailored rather than overly broad to ensure they do not discourage otherwise legitimate activity. See Stericycle, Inc. & Teamsters Loc. 628, 372 NLRB No. 113 (Aug. 2, 2023). Of equal importance, employers should take care not to engage in conduct that could be construed to pressure or influence employees' political activities, associations, or choices.