the proskauer brief logo imageIn this episode of the “Can My Employees Do That?” series, partner Elise Bloom and associate Michelle Gyves discuss whether employers can lawfully limit an employee’s participation in political activities, protests, and similar activities. We also discuss whether an employer can restrict an employee’s association with groups or publications on social media or elsewhere which espouse ideologies that are at odds with the employer’s values. Lastly, we will cover to what extent an employer can limit political speech at work. So be sure to tune in for this very insightful episode.

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Shelly Gyves:
 Hello, welcome to the Proskauer Brief: Hot Topics on Labor and Employment Law.  I’m Shelly Gyves and I’m here with Elise Bloom.  On today’s episode, we are going to continue the next episode of our series of podcasts entitled, “Can My Employees Do That?”

Elise Bloom:  Specifically, today we’ll be discussing whether employers can lawfully limit employees’ participation in political activities, protests, and similar activities.  We’ll also discuss whether an employer can restrict employees’ association with groups or publications on social media or elsewhere which espouse ideologies that are at odds with the employer’s values.  Lastly, we’ll talk about whether, and if so, to what extent an employer can limit political speech at work.  Shelly, many employees believe that an employer cannot discriminate based on an employee’s political beliefs.  Are they right?

Shelly Gyves:  In many cases, no.  There’s no federal law that prevents discrimination by private employers based on political belief.  Under federal law, it’s perfectly legal for an employer to discriminate against or prefers to say, employees that are Republicans, Democrats, Conservative, or Liberal, but there are a handful of states that have protections that are greater than federal law.

California, for example, state law provides that an employer cannot have a policy controlling or directing the political affiliations of employees.  Similarly, Colorado says that you cannot prevent employees from joining or belonging to any particular political party.  In Montana and Washington D.C., they are examples of other states and localities where there are similar protections based on political ideas or political affiliation.  Then, there are some other states that don’t have such broad prohibitions on political belief or political affiliation discrimination, but they do protect certain political activities by employees.  In New York, there’s a law that says that you can’t discriminate against an employee and employment as a result of them running for public office, campaigning for a candidate for public office, or participating in fundraising activities for the benefit of a candidate, political party, or a political advocacy group.

Similarly, in Nebraska, there’s a protection of an employee’s right to vote or not vote for a particular candidate, ball proposition, or something along those lines.  I think the bottom line is that it’s really on a state by state basis whether an employer is able to have some sort of preference in employment based on political belief.  I think that raises the question, at least, if there’s no protection around a political belief or if there’s protection some places around political beliefs and political affiliations, can an employer generally prohibit an employee from participating in protests, otherwise speaking, or posting about controversial or political topics?

Elise Bloom:  It raises a very interesting question that really focuses on the tension between what an employer can prohibit during working hours on work premises versus what an employer can prohibit an employee from doing when he or she is not at work.  There are really three buckets:  the first is when an employee is on working time in work areas and when an employee is on work premises during working time if there is a clear, established policy that does not differentiate between types of political speech.  An employer is free to inhibit political speech on work premises at work time.

Where the issue gets a little bit more complicated is when we look at whether an employer can extend those prohibitions to what an employee does during his or her non-working time, while either still on the premises or during a non-working time when they are off the premises.  Why this becomes a little bit trickier is because there are some limitations on when employers can prohibit employees from either talking about certain topics or participating in protests or other events that advocate certain topics.  I think the biggest limitation comes from the National Labor Relations Act which protects employees regardless of whether they are part of the union.   Under the National Labor Relations Act you cannot prohibit employees from talking about topics that impact their working conditions.  Where we see the overlay, in terms of political expression, is where, for example, an employee may be advocating for a particular political candidate because that candidate favors an increase in federal minimum wage or that candidate favors enhanced sick leave.  In the situation, an employer could not prevent employees from discussing their political beliefs on their non-work time even if they remain on the work premises.  That’s different from an employee espousing a general political belief that is not tied to a term and condition of the employee.

Where it gets even more complicated though, is in terms of to what extent an employer can control what an employee says or what events they participate in during their non-working time off premises.  There are several states that have significant limitations on this.  One of the states that we are most familiar with is right here in New York, which is the Off-Duty Activities Law, which says that an employer cannot treat somebody differently because of what recreational activities they engage in.  Again, the overlap here, with political speech or political activity is that the activity must be recreational to the extent of engaging in some type of political activity or a political protest can be considered recreational, then the employer could not take some action against the employee for participating.

In Connecticut, you cannot discipline or discharge an employee for the employee’s exercise of his or her first amendment rights unless such activities or substantially or materially interfere with the employee’s bonafide job performance or the working relationship between the employee and the employer.  In North Dakota, you cannot discriminate based on an employee’s lawful activity off the employer’s premises during non-working hours which is not in direct conflict with the essential business-related interest of the employer.  Again, not so much of a clear line as to what would be in the essential business-related interest of the employer.

Bottom line, employers have a lot of latitude during working time in work areas, so long as whatever prohibition they apply is applied across the board and the employer’s latitude becomes a lot less when we’re talking about employee speech or activities on premises during non-work time, and becomes even less when we’re talking about activities off premises in non-working time.  Shelly, thinking about all of that though, with the anti-discrimination laws, for example, would the laws prohibiting discrimination based on religion or race have any impact on how an employer deals with an employee, either engaging in political speech at work or taking time off to go to a protest?

Shelly Gyves:  They might, from a perspective of religious discrimination and with all these laws, need to be looked at on a case to case basis.  From a religious discrimination perspective, the threshold question is going to be whether the speech or the activities that the employee is participating in constitute religion or religious belief and that would be contrasted with political philosophy or political belief which with the expectations that we talked about before, wouldn’t be protected.  The EEOC and courts have looked at this and have said that religion and religious belief relates to ultimate ideas about life and purpose.

In the context of groups that have addressed racial issues, there have been a number of cases, for example, discussing whether participation in the KKK or espousing or belief of the KKK constitutes a religion.  Generally speaking, cases have found that it does not, that the KKKs ideology is a political philosophy versus a religious philosophy.  In contrast, there have been some groups that espouse similar views to the KKK, but that have a more clear indicia of religion like particular spiritual components or particular rituals.  There is a movement called the creativity movement, for example, which has been found by some cases to constitute a religion.  Expressed participation in that group is something that has been found to be protected.

From a race discrimination perspective, we would be thinking about both disparate treatment and disparate impact and I think here is another place where a neutral policy, a viewpoint-neutral policy, is unlikely to get you into trouble.  Having some sort of policy that prohibits leaving work to attend protests generally or that prohibits employee participation in protests during off-duty hours, that would be protected by the off-duty activities laws that you spoke about before, Elise.  Those will be fine and will unlikely to result in any sort of issue from a race discrimination perspective.

Where there are less viewpoint-neutral policies like an employer saying you can’t leave for a Unite the Right rally or a White Nationalist rally, or on the flipside, you may not participate in a Black Lives Matter event or rally.  Then you have a risk of both disparate treatment and a disparate impact claim.  I think a disparate treatment claim is unlikely to be successful.

Courts have generally held that even characteristics or activities that are very closely correlated with race are not considered to be race from a disparate treatment perspective.  The risk of a successful claim, in that regard, is quite low.  There is some risk of a disparate claim if you do have a non-viewpoint neutral policy and you would be required to show, in order to defend against such a claim, that your policy is job-related and consistent with business necessity.  This goes back, again, similar to the off-duty activities laws that Elise spoke about before, it goes back this idea of how it really impacts the employee’s job or the employer’s workplace to have this policy or do not have this policy and being able to show that it’s really a business necessity to impose this non-neutral policy.  Then, you also have to be able to show that there’s no alternative policy that has less of a disparate impact but achieves the same goals which may be difficult if a viewpoint-neutral policy would achieve the purpose, prohibiting protests generally rather than prohibiting particular kinds.

Thank you for joining us on the Proskauer Brief today.  Thank you, Elise, for being here as well.  Stay tuned for more insights on the latest hot topics in labor and employment law and be sure to follow us on iTunes, Spotify, and Google Play.

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Photo of Elise M. Bloom Elise M. Bloom

Elise M. Bloom is widely hailed as one of the nation’s top employment lawyers and one of the most creative and effective discrimination wage and hour, class/collective action trial lawyers. She is particularly well-known for handling high profile, bet-the-company matters on behalf of…

Elise M. Bloom is widely hailed as one of the nation’s top employment lawyers and one of the most creative and effective discrimination wage and hour, class/collective action trial lawyers. She is particularly well-known for handling high profile, bet-the-company matters on behalf of significant national employers.

Elise is the former co-chair of Proskauer’s Labor & Employment Department, co-head of the Class & Collective Actions Group and previously served as a member of Proskauer’s elected Executive Committee for two terms.

With 30+ years in practice, Elise possesses extensive pre-trial and jury trial experience as well as conducting high-profile investigations. She has represented more companies in class actions challenging interns, trainees and volunteers than most others; this includes her precedent-setting win for Fox Searchlight Pictures in the “Black Swan” case. She also addresses a wider range of general employment issues through counseling and employer training programs.

A noted author and speaker on employment-related topics, Elise spearheads Proskauer’s annual Value Insights: Delivering Value in Labor and Employment Law survey. Elise has been recognized as one of the leading employment lawyers by several leading publications such as Chambers USA, Legal 500, New York Law Journal and Employment Law360, to name a few. She was recently recognized as “Labor & Employment Management Attorney of the Year” at Benchmark Litigation’s 2020 US Awards EAST. She has also been named “Best in Labor & Employment” at Euromoney’s Women in Business Law Awards Americas in 2018, 2017, 2016 and 2014. A client recently told Chambers USA, “She’s incredible. She has an intensity about her work and she knows how corporations work. To watch her in litigation is magic.”