As we enter the final stretch to tomorrow’s election, employers should be prepared to respond to employees who voice their political beliefs in the workplace. Please be aware of the following rights and restrictions:

Political Speech in the Workplace

• Generally, private employers can regulate political expression (e.g., banning employees from wearing political insignia) and political speech (e.g., banning employees from voicing their opinions about candidates) in the workplace.
• But, employers should tread carefully before restricting employee speech and ensure that such limitations are applied in a uniform manner, and not in favor of one candidate or political party.

Lawful Off-Duty Conduct

• Employers cannot terminate, discipline or discriminate against an employee for “lawful conduct” that takes place during nonworking hours and away from the workplace, including lawful expressions of political opinions and engaging in political activities.
• However, off-duty conduct that harms (or potentially harms) the employer’s business interests may serve as a basis for employee discipline, but the individual facts of the situation must be carefully considered before taking any disciplinary action.

Political Posts on Social Media

• Employers should not review their employees’ social media posts to see whether an employee’s views and values align with their own.
• Social media posts on employees’ personal accounts constitute lawful off-duty activities. As a result, employers should generally treat such posts as lawful off-duty conduct.
• As a reminder, laws in several states, including New York and California, limit an employer’s ability to demand review of employees’ private social media posts. These laws generally prohibit employers from asking employees for their social media handles or account names and from requiring employees to share private posts with them.

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If you have questions or would like additional information, please contact our Labor & Employment attorneys or the primary EGS attorney with whom you work.