As America slowly exits another contentious election cycle , your business client may ask : “ Eddie Employee ’ s politics are toxic – can I fire him ?” This isn ’ t a stretch . For years , the news cycle has been littered with employees who were fired because they were caught on camera behaving badly , often spewing ugly political rhetoric . 1 Whether the employee can be fired legally depends on the circumstances , of course . As a general rule , most political speech by employees is not protected , meaning your client could treat Eddie like any other at-will employee , i . e ., they can fire him at any time , for any reason , with or without notice or cause . If the employee has engaged in violence or another crime for political reasons , your client can fire away and never look back . But when the problem concerns political speech , a handful of state and federal laws create pitfalls , which means that guiding your client through the landscape isn ’ t always so straightforward .
The Problem With Politics Politics creates several problems for the workplace . During the election of 1800 , Thomas Jefferson ’ s supporters attacked John Adams by insinuating that he may be a hermaphrodite . 2 In 1830 , Martin Van Buren ’ s supporters attacked William Henry Harrison for being “ old and lacking stamina .” 3 In 1912 , Theodore Roosevelt called William Howard Taft “ a ‘ fathead ’ with ‘ the brains of a guinea pig ,’ and Taft responded in kind , saying Roosevelt ’ s followers were ‘ radicals ’ and ‘ neurotics .’” 4 Echoes of these attacks resonate today : “ Sleepy Joe ,” the Steele Dossier , Jeffrey Epstein ’ s flight logs , “ radical socialism ,” and so forth .
The business problem with politics is its negative effect on productivity . In February 2017 , a human resources research firm called Betterworks reported that people are spending more time following politics since the 2016 election , 5 and this includes the time they are at work . Specifically : 87 % of employees “ read political social media posts at work ;” 73 % of employees discuss politics with colleagues ; 63 % of millennial employees said they have witnessed a political conversation devolve into an argument at work ; and 29 % of workers admitted they were less productive since the 2016 election . An outplacement firm called Challenger , Gray & Christmas estimated that American businesses lost $ 1.76 billion in employee productivity while employees watched the televised Supreme Court confirmation hearings for Justice Brett Kavanaugh . 6
Politics is also believed to hurt organizational dynamics . A 2019 study by the Public Religious Research Institute found that 82 % of Republicans believed the Democratic Party is controlled by socialists , and 80 % of Democrats believed the GOP is controlled by racists . 7 Disdain for coworkers based on toxic partisanship is problematic , and can easily lead to conflict . Accordingly , to the extent possible , politics in the workplace should be avoided .
What About the First Amendment ? Your clients may ask about the First Amendment . Many assume that American employees are protected by a general “ freedom of speech .” Indeed , the First and Fourteenth Amendments , when read together , prevent governments from firing employees in response to their political speech and affiliations . Private employers , however , are governed by different rules .
For example , in response to player protests initiated by Colin Kaepernick , the National Football League (“ NFL ”) instituted a rule in 2018 that all players on the sideline must stand during the National Anthem or their team would be fined . 8 Despite complaints that the rule limited players ’ First Amendment rights to free speech , the NFL was entitled to create and enforce the rule because it is a private employer , at least under the First Amendment to the United States Constitution . 9 Of course , whether the NFL could create the policy and whether it should have are entirely different questions . In contrast , Peter Strzok , the ex-FBI agent who launched the Bureau ’ s probe of Russian interference in the 2016 election ,
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was fired two days after it was discovered he had sent strongly anti-Trump text messages during the probe . In late 2019 , Strzok filed a wrongful termination lawsuit , alleging his termination was the result of his political speech which was protected from government retaliation by the First Amendment , among other things . Because the FBI is a government agency , the Department of Justice ’ s motion to dismiss Strzok ’ s lawsuit was recently denied . 10
If your client is a government agency , you may have a First Amendment issue to consider . For purely private employers , the First Amendment is not a significant consideration .
State Laws Protect Political Speech Your client isn ’ t necessarily in the clear just because the First Amendment doesn ’ t apply . Certain state constitutions and statutes grant broader protections , going so far as to prohibit private actors ( including businesses ) from interfering with a citizen ’ s freedom of speech . 11
For example , California , Colorado , Louisiana , Minnesota , Missouri , Nebraska , Nevada , South Carolina , and West Virginia have passed laws making it a misdemeanor to interfere with an employee ’ s political activity . Punishments range from fines to jail time . 12
The District of Columbia , Illinois , Iowa , Louisiana , New York , Puerto Rico , and Washington each prohibit discrimination against employees either based on party membership or their electoral activities . 13
Arizona , Georgia , Iowa , Louisiana , Massachusetts , Minnesota , Missouri , Ohio , Oregon , and Washington give protections to employees who sign petitions or make campaign contributions . 14 Thus , at least locally , you cannot fire an employee for donating to the opposition .
The Overlap Between Politics and Labor Laws Even without laws that specifically protect
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