In the private workplace, political speech need not apply
A Johnson Controls service truck pulled in front of me on the freeway recently, and on the back bumper were campaign stickers promoting the re-election of President Donald Trump in 2020 and Gov. Greg Abbott in 2018.
Rarely do marked corporate fleet vehicles bear such partisan advertisements, so I emailed the company for an explanation. A spokesman promised to send me a statement.
This kind of intrusion of politics into the workplace offers a glimpse of what we can expect as the 2020 campaign season kicks into high gear. After Labor Day, politics will seep into every crevice of our lives, presenting challenges for supervisors.
The first and most important lesson for every worker is that your employer has no legal obligation to respect your freedom of speech. The First Amendment protects people from government censorship, but your boss is the undisputed dictator at work, especially in Texas.
“A boss can say to employees that talking about politics is not a part of our job,” Chip Babcock, a First Amendment lawyer at Jackson Walker told me.
The boss can forbid political discussions, make political email blasts a firing offense, and tell anyone hitting up colleagues for political contributions to pack their things now.
With the 2020 races likely to raise tempers and emotions, many bosses will decide a total ban makes sense. But he or she should be prepared for the hothead who storms the office saying a boss can’t do that.
“The blunt answer would be, ‘Oh, yes, I can. Get out of my office,’” Babcock said. But as a free speech advocate, he recommends a less confrontational approach.
“The First Amendment is not directed at a private employer like me. Let’s talk about what you want to say, why you want to say it and how that relates to your work,” Babcock suggests saying.
Even the most passionate activist will recognize that most businesses do not benefit from intense political discussions on company time. But if anyone does know a way to make money from Bob in accounting mansplaining
Protesters left Amazon boxes — with a grumpy twist — on Amazon’s Prime Day.
fiscal policy to Leslie from purchasing, please email me because I want to invest.
Some bosses, though, love politics. They invite their favored candidates to hold events in the workplace. The frustrating part is that your boss can order you to attend a workplace rally, whether you like it or not.
“It’s probably okay if it’s work hours and there’s not an imposition of some additional work without compensation that goes with it,” Babcock said. “I don’t know that’s something that I would advise one of my clients to do, but they can do it without fear of some legal retribution.”
Where it becomes more disturbing is that your boss can punish you for off-duty political activities. As long as an employment or union contract does not specify otherwise, Texas employers can fire any employee who engages in politics.
“If you’re an at-will employee, and the employment action is based on the speech you give out in the community, and that’s not just a pretext for something else, then sadly the employer can terminate,” Babcock explained. An employee who attends a white supremacist rally is one example.
The question of pretext, though, is essential. Human resources should feel confident that an employee was fired for their political activities, not because of their race, gender, ethnicity or religion. These days it is hard to determine the line between politics and discrimination.
For example, Trump supporters who share his racist comments about Mexican immigrants could face accusations of creating a hostile workplace for Hispanics. Repeating a Texas Republican official’s comments about why Muslims should be banned from party leadership could end in a meeting with human resources.
Nevertheless, Babcock recommends that his clients follow a middle path that allows a limited, healthy amount of political discussion at work. A good boss knows how to let people discuss the news of the day while maintaining a cohesive team.
“Participating in democracy is a good thing. And I would think participation would reflect well on a business as opposed to adversely,” he told me.
Surveys show that customers expect the brands they love to stand up for their values, most notably on environmental and social issues, like lesbian, gay, bisexual and transgender rights. Partisan politics, though, present real challenges for companies with a broad consumer base. Companies like Johnson Controls must set limits.
“Johnson Controls drivers are prohibited from attaching stickers, pennants, emblems, etc., to the company vehicle except those required by Federal/State or Province/ Local law and parking or ID stickers,” the company said in a statement. “The bumper sticker referenced on the company vehicle has been removed.”
Definitely the right move. America’s most fundamental value is belief in a pluralist democracy, but there must be common-sense limits.