Articles Discussing Free Speech In The Workplace.

Dear Littler: I saw one of my employees on the local news the other night participating in a political rally over the weekend. We try to maintain a tension-free workplace. Can I discipline him for this conduct? Can I at least institute a policy prohibiting this kind of behavior going forward?

On November 8, voters across the country will head to the polls to determine the next president. Some states have already begun the early voting process. Voters will also decide who fills various U.S. congressional seats, who will represent them at the state and local levels, and which ballot initiatives will be approved. As voters contemplate their important choices, the heated rhetoric on the campaign trail will undoubtedly make its way into the workplace. For instance, in June 2016, 26% of responding human resources professionals reported an increase in the amount of employee political concern and expression this election season.1

A government employer can violate an employee’s constitutional rights by acting based on incorrect information that, if true, would violate the U.S. Constitution, even though the employee was not actually exercising his or her constitutional rights, the U.S. Supreme Court has held in a 6-2 decision. Heffernan v. City of Paterson, No. 14-1280 (Apr. 26, 2016).

The ubiquitous thumbs-up icon in Facebook has gained new prominence for private employers. In a case of first impression, the U.S. Court of Appeals for the Fourth Circuit held that an employee fired for “liking” the campaign page of his boss’ political adversary engaged in speech protected by the First Amendment of the U.S. Constitution. While this case, Bland v. Roberts, Case No. 12-1671 (4th Cir. Sept. 18, 2013), involved only public sector employees, the Fourth Circuit’s ruling has important implications for private employers as well.