Heated debates over politics have become increasingly prevalent this election year. That is good. But recognize this reality: there are almost no workplace protections for employees that prevent employers from firing them because of their political speech.
Read that again: probably you can get fired for wearing a Bernie Sanders button to work or for parking a heap in the employee parking lot with a Trump sticker. There are some notable exceptions - employees who can spout what they wish without fear - but in much of the United States, across most jobs, employees are deemed to be “at will” employees which means the boss can terminate just because.
Understand this: the 2016 campaigns are proving to be remarkably acrimonious. That’s why Jim Ryan, a partner with the New York law firm of Cullen and Dykman, predicted “we will see more firings this year; you will see a lot of it especially after the convention.”
He added that for New York private sector employees, “you don’t have any particular free speech rights.” That’s right: even in usually liberal New York, employees are urged to monitor their political utterances.But Ryan also pointed to a huge group of employees - in New York and other states - who in fact have considerable ability to express their political beliefs. “Public sector workers have a lot of protections,” said Ryan.
Those protections were recently reinforced in a U.S. Supreme Court ruling that said the town of Paterson, N.J. misbehaved when it demoted a police detective when he was seen carrying a political sign of a challenger of the mayor. The cop, Jeffrey Heffernan, said that in fact it wasn’t his sign; it was for his bedridden mother. Justice Stephen Breyer, in writing for the court, noted: “When an employer demotes an employee out of a desire to prevent the employee from engaging in political activity that the First Amendment protects, the employee is entitled to challenge that unlawful action… even if, as here, the employer makes a factual mistake about the employee’s behavior.”
Different states may afford different public employee protections. But in much of the country, if you work for the government, have at it in expressing political beliefs, offline and online.The exact opposite is true of private sector employees. In most states employees have no rights to political speech - but with a giant exception. The exception is California, said employment lawyer Leonard Brazil, with Clark/Trevithick in Los Angeles. “We have statutes on the books that limit an employer’s ability to impact an employee’s expression of politics," he explained. "There has to be a legitimate business reason.”