Heated debates over politics have become increasingly prevalent this election year. That is good. But recognize this reality: there are almost no workplace protections for employees that prevent employers from firing them because of their political speech.
Read that again: probably you can get fired for wearing a Bernie Sanders button to work or for parking a heap in the employee parking lot with a Trump sticker. There are some notable exceptions - employees who can spout what they wish without fear - but in much of the United States, across most jobs, employees are deemed to be “at will” employees which means the boss can terminate just because.
Understand this: the 2016 campaigns are proving to be remarkably acrimonious. That’s why Jim Ryan, a partner with the New York law firm of Cullen and Dykman, predicted “we will see more firings this year; you will see a lot of it especially after the convention.”
He added that for New York private sector employees, “you don’t have any particular free speech rights.” That’s right: even in usually liberal New York, employees are urged to monitor their political utterances.
But Ryan also pointed to a huge group of employees - in New York and other states - who in fact have considerable ability to express their political beliefs. “Public sector workers have a lot of protections,” said Ryan.
Those protections were recently reinforced in a U.S. Supreme Court ruling that said the town of Paterson, N.J. misbehaved when it demoted a police detective when he was seen carrying a political sign of a challenger of the mayor. The cop, Jeffrey Heffernan, said that in fact it wasn’t his sign; it was for his bedridden mother. Justice Stephen Breyer, in writing for the court, noted: “When an employer demotes an employee out of a desire to prevent the employee from engaging in political activity that the First Amendment protects, the employee is entitled to challenge that unlawful action… even if, as here, the employer makes a factual mistake about the employee’s behavior.”
Different states may afford different public employee protections. But in much of the country, if you work for the government, have at it in expressing political beliefs, offline and online.
The exact opposite is true of private sector employees. In most states employees have no rights to political speech - but with a giant exception. The exception is California, said employment lawyer Leonard Brazil, with Clark/Trevithick in Los Angeles. “We have statutes on the books that limit an employer’s ability to impact an employee’s expression of politics," he explained. "There has to be a legitimate business reason.”
In that vein, probably an employer in California can prohibit a worker who wears a company uniform from sporting a candidate’s button. But probably, too, that employee can have a candidate’s bumper sticker on his car - with no repercussions, especially if that car is not used as a delivery vehicle. Probably. Remember, this is all matters of subtleties where little can be assumed.
California Labor Code, Section 1101, is plain spoken however. “No employer shall make, adopt, or enforce any rule, regulation, or policy: (a) Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office. (b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees.”
Don’t expect to find similar in many other states. California is an outlier.
But for those who live and breathe politics, they now know where to call home.
Rights aside, know that you may simply not wish to talk politics on the job. Pierre-Renaud Tremblay, director of human resources at Dupray, which sells steam cleaners internationally, said, “I can say this with absolute confidence and certainty - do not talk about politics in the workspace."
That's all the more sound advice during contentious times like these.
"During an election cycle as volatile as the one happening in America this year, employees need to distance themselves as far away as possible from this topic," Tremblay added. "With the fieriness of Trump, Sanders, Clinton, Cruz and the defeated rest, opinions diverge more than those of two nations at war. People care about these things. They care so much, that they might resent others who do not share their opinion.”
Tremblay added: “If the conversation gets heated and people are assaulted -- verbally or otherwise -- we are required to step in. If this happens often and frequently enough, we have leeway to terminate. For the sake of company culture, more often than not, we will proceed with that termination.”
What about expressing opinions online - on Facebook, for instance, or Twitter? Advice from multiple experts is proceed with caution. In states where a private sector employee can be fired for his political statements, that extends to online speech too. Endorse Ted Cruz in a tweet, and if that tweet is forwarded to your pro-Trump boss, it may be sayonara.
Think on that before posting. And think too before wading into a heated political discussion on the job. There just may be a high price to pay. That’s why many of the cagiest workers are playing their political cards very close to their vests this political season.
This article is commentary by an independent contributor. At the time of publication, the author held TK positions in the stocks mentioned.