Texas Lawyer magazine has published a guest article by M2D partner Mike Muskat exploring what employers should know in handling political and social advocacy by their employees. “Political and Social Advocacy at Work After the Roe v. Wade Reversal – What Employers Should Know” (subscription required) walks through items employers should consider when deciding if they can or should ban political speech in the workplace.
In the article, Mr. Muskat poses the questions: When can a private employer lawfully restrict political and social speech in the workplace, and is it a good business decision?
He then provides several principles employers should consider, including:
- There is no basic legal right in a non-governmental workplace to engage in pure political or social expression.
- However, statements that contain elements of political or social expression can be protected to the extent they also protest conditions in the workplace, not merely society at large.
- Even potentially protected expression, however, can lose its protection if it unreasonably interferes with the performance of work.
Mr. Muskat goes on to say that based on the substantial precedent on the issue, workplace expression that protests or celebrates societal events, like the reversal of Roe v. Wade, is not protected and may be restricted “if they do so in a neutral and even-handed way that does not discriminate on the basis of a protected employee classification.”
However, if protest relates to conditions in the workplace, the answer may be different. Employment law does protect expression that protests discrimination in employment, terms and conditions of employment, or unsafe working conditions. For example, employees’ concerted protest about their employer’s policy on funding travel for abortions in the wake of the Roe reversal could garner protection, whereas complaints about abortion in general would not.
Mr. Muskat writes that employers working to decide whether or not to ban political and social advocacy are well-advised to consider:
- If the activity is entirely related to political or social issues outside of the workplace or if the activity related to the conditions of employment of the employee or others.
- If the activity interferes with an employee’s ability to do the job, customer relationships or creates unsafe conditions.
- How the company has treated non-work-related advocacy and protest previously.
- If the conduct is discriminatory or creates a hostile work environment based on a protection classification.
- If it’s a good business decision.
Mr. Muskat adds that, while Roe v. Wade is the most recent event to raise difficulty questions, other conflicts may arise, which is why employers are best served to prepare in advance.