Politcal/Social Expression and Upheaval

By Lehr Middlebrooks Vreeland & Thompson, P.C.

January 11, 2021

The events leading up to and occurring on January 6th in our nation’s capitol and at several state capitols raise questions about an employer’s rights to hold employees accountable for their political expression and behavior away from work. As a starting point, employers in most states have great latitude to consider what employees say and do away from work as a factor for whether an individual should remain employed. “Free speech” under the U.S. Constitution does not apply to the private sector workplace, and even in the public sector workplace, it has limitations. The following are employer rights to consider in today’s highly charged political environment:

1. An employer does not need a policy for everything. If an employer learns of an employee’s political activities or expressions which -- in the employer’s judgment -- are contrary to the values of the organization, the employer usually has the right to take action based upon those expressions.
2. An employer has the right to consider what it becomes aware of based upon tweets or other social media posts by the employee or depicting the employee, even if not directed toward the employer. Often, fellow employees or customers share this information with the employer, and you have the right to consider it.
3. An employee does not have to be convicted of a crime for an employer to consider an employee’s current arrest in deciding whether the employment relationship should end. Thus, an employee arrested for trespassing on public property (state or federal) or defacing or breaking into governmental property (or any other property for that matter) does not have to be convicted for the employer to act. The employer has the right to state that although the employer is not determining the employee’s guilt or innocence, the employee’s overall circumstances conflict with the company’s interests and therefore, the employee is terminated. Some employers place an employee on leave without pay pending an unequivocal finding of innocence and without assurance that a job will be available if that occurs.
4. Private employers have the right to prohibit political slogans or expression at work or on the organization’s premises which the employer believes may be inflammatory or inappropriate, as well as on social media.
5. Employers may want to communicate to employees that the company’s approach to inclusion includes valuing and respecting employees’ and customers’ different backgrounds, beliefs and philosophies. At the foundation of inclusion is respect for the impact of one’s beliefs, actions or views on others and that it is the company’s expectation that employees will refrain from activity at work or away from work which may be viewed as malicious or fractious.