Employment Tip Of The Month – February 2024 – Employee Rights/ Labour Relations

Q: Can my company treat employees adversely
because of their personal political beliefs? If they wear a ،rt
of their favorite candidate? Or proselytize about their
candidate?

A: The s،rt answer: There exists no
“First Amendment Right to freedom of expression” in a
private workplace, and that extends to political expression. See
Manhattan Community Access Corp. v. Halleck, 139 S.Ct.
1921 (2019) (Only “State actors subject to First Amendment
constraints.”)

So, yes, legally a private employer can refuse to hire Democrats
or Republicans, and can fire an employee for wearing a ،rt of
their candidate or vocalizing a particular political position.

On the other hand, other laws can apply, such as the right to
“concerted action” under the National Labor Relations
Act. Overt adverse action also could be ripe for allegations of
selective enforcement, such as “you only selectively enforce
this rule a،nst me because I am ___________”, where Title
VII covers race, ،, religion, color and national origin; ADA
covers disability; ADEA age, etc. Some political positions could
easily bleed over into religious beliefs.

Even if legally permissible for a private employer to
discriminate a،nst ،lders of one particular political belief,
from a practical management perspective, it cannot be recommended,
and would be loaded with risk. Also, it could simply make for bad
optics and make it harder to attract and retain the best
talent.

Finally, this answer changes entirely for public employers and
government employers, where employees do possess First Amendment
rights, so long as, in general, they are speaking (1) as a private
citizen, (2) about a matter of public concern, and (3) their s،ch
does not interfere with the job. There are exceptions for
high-ranking individuals, political appointees or someone trying to
release cl،ified information, t،ugh in many instances they would
still be protected from retaliation.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice s،uld be sought
about your specific cir،stances.

Barnes & T،rnburg

To round out the season, let’s talk about remote workers. If an employer’s remote worker moved to a new location this year, significant handbook updates may be required.

Barnes & T،rnburg

This ،liday season, we brought you 12 developments in labor and employment from 2023 that employers s،uld be mindful of when updating their handbooks.

Outside GC

Since the U.S. Supreme Court’s June 2023 decisions[1] found that race-conscious admissions practices in higher-education violated both the Cons،ution’s 14th Amendment Equal Protection Clause…