Foster: What workers, employers need to know about political speech at work

Arizona, renowned for its swing state status and diverse political perspectives, can anticipate a rise in political speech in the workplace as the 2024 General Election nears. Employees and employers should be aware of the legal implications on political discourse at work and seek attorney guidance to help navigate potential disruptions in today’s landscape.

Legal framework

Political speech is protected in public roles under the First Amendment, but private employers, including large companies and small businesses, have less clear boundaries on regulating political speech within their organizations. They have the liberty to establish clear policies on political speech to maintain work professionalism and prevent disruptions.

In Arizona, an at-will employment state, employers can generally terminate employees for any lawful reason, including opposing political views. However, firing an employee for political speech of their views related to working conditions may violate the National Labor Relations Act, which protects employees’ rights to engage in political speech if related to working conditions or employment terms. This includes discussion of compensation, benefits, advocating for candidates supporting wages and more — there are limitations based on content and context.

Employee rights

As an employee in Arizona, you have a right to political expression and participation outside of work, including attending a rally or a protest, volunteering for a candidate’s campaign or sharing your political views online. However, private employers have the authority to manage how employees express their political views.

The knowledge and understanding of the guidelines on political expression at work and your rights can protect you if you experience discrimination, harassment or wrongful termination due to political beliefs or activities.

If you are heading to the polls during work hours to vote this Election Day — Nov. 5 — remember that Arizona Revised Statute § 16-402 requires employers to provide time off for an employee to vote in a primary or general election if the employee has less than three hours either before or after work to vote before the polls close.

Managing political speech as an employer

Employers must address political activity in the workplace by clarifying the speech and conduct allowed and the consequences of violating these policies. An employment attorney can help companies craft clear, lawful boundaries on political activity with policies that continue to uphold the values and objectives of the business.

Employer policies should include: a non-discrimination and non-retaliation policy prohibiting action against employees based on their political beliefs or activities; a code of conduct outlining acceptable behavior in the workplace; and a social media policy to manage how employees may represent the brand online.

If employees show support for a candidate through a t-shirt, hat or poster in their office, these can raise concerns about disruption. Employers should review their dress code policies to mitigate potential issues.

Above all, it is paramount to create an environment where employees feel safe and comfortable reporting issues without fear amidst political tensions.

What can employees do?

If you’re an Arizona employee who believes you’ve been wrongfully terminated for political speech or affiliations, document any related discrimination, retaliation or harassment by collecting relevant emails, memos, or records of conversations.

Review your employer’s handbook and contract for political expression policies and protections under them. Also, consult an experienced employment attorney to navigate your legal options. Your case may have grounds to file a complaint with the EEOC or the Arizona state labor board, and you'll need to provide evidence showing that your political affiliation or protected speech was a motivating factor behind the action taken against you.

As Arizonans head to the polls, let’s maintain a work environment that protects our rights and our democracy.

Editor’s note: Troy P. Foster is lead attorney and founder of Phoenix-based The Foster Group. To learn more, visit www.thefosterlaw.com . Have an opinion on political speech in the workplace? Reader reactions, pro or con, are welcomed at AzOpinions@iniusa.org .