Election season will be in full swing in a few short months, as in any election, there is a strong possibility that the contentious world of politics may spill into the world of your business. If this happens, most of the time, it will likely be harmless banter among employees. However, there is always the risk that things may get out of control and impede its smooth operation. Employers should be mindful of what they can and can’t do when politics enters the workplace.

When analyzing whether an employee has a valid claim against an employer for being disciplined when engaging in political speech in the workplace, the critical question an employer needs to ask is whether it is a public or a private employer. If the employer is a public entity, courts will engage in a three part test to determine if the employee has a valid claim against the employer by first determining whether the speech relates to a matter of public concern, then balancing a variety of factors relating to the effect of the speech on the public and on the operation of the public entity and finally by determining whether the speech was made pursuant to the employee’s official duties. If an employee’s speech is related to a matter of public concern, passes the balancing test, and was not made pursuant to his or her official duties, the employee will have a claim against the public employer.

If an employer is a private employer, the analysis in the paragraph above goes out the door. As a general rule, private employees have no Federal Constitutional protection when making political speech in the workplace. Private employers can generally discipline an employee for making political speech on the job. Thus, private employees should be wary of bringing politics into the workplace. Like most rules, there are some exceptions.

Employers need to keep in mind that anti-discrimination laws still apply to speech based disciplinary actions, thus employers need to ensure their political speech policies do not discriminate based on sex, national origin, religion or other protected areas. Some states have statutes which prohibit an employer from disciplining an employee for engaging in behavior, such as political speech, that is protected by that state’s constitution. Statutes such as these are few and far between and most of these statutes do not apply to political speech that occurs in the workplace. Accordingly, while the general rule described above most likely applies, human resources departments and employees alike should look at the statutes and case law in their particular state when developing and enforcing policies or when thinking about engaging in political activities in the workplace.

While private employees have no Federal Constitutional protection and very little state constitutional protection, private employees do have one major avenue of protection when it comes to workplace speech: the National Labor Relations Act (“NLRA). The protections for employee speech provided by the NLRA apply to both union and non-union employees. Employee speech is protected by the NLRA if it is (1) concerted, (2) about a work related object, and (3) protected.  Employee speech is concerted if it is “engaged in, with or on the authority of other employees and not solely by and on behalf of the employee himself.” Meyers Industries, 281 NLRB 882 (1986). Note that this does not require official union activity or even talk of collective bargaining. Employee speech is about a “work related object” if it is intended for mutual employee aid or related to wages, hours or other terms of employment. However, even if employee speech is concerted and about a work related object, it must also be “protected”. Employee speech will not be “protected” if the employee’s actions are unlawful or overly disruptive. Employers have to jump a relatively high hurdle to establish that an employee’s actions are not protected, rudeness is not enough. In most cases, political speech involving elections will not be protected by the provisions of the NLRA but it is a good idea to keep it in mind.

Of course, in addition to knowing what limits the law imposes on their ability to curtail employee political speech, employers should consider issues such as employee morale and the feasibility of enforcement when crafting a policy on workplace political speech. Employer policies should attempt to balance workplace efficiency with employee freedom. For example, a policy could include a prohibition on political speech in areas within view or earshot of customers and limit the size and permissible locations of political buttons and posters.

In sum, most private employees should be careful about what they say and do in the workplace when it comes to political speech because, in most circumstances, they can be disciplined for political speech unless it falls within the purview of the NLRA or other generally applicable federal or state law.