With political campaigns well underway for this year’s elections—and heated discussions, lobbying for candidates and other distracting behavior filling workplace hallways and messaging platforms—private-sector employers may wonder if they’re ever allowed to fire workers for their political affiliation and activities. They often can, as there is no federal law that creates a protected class based on political beliefs or actions.

“In most states, private employers can fire their employees for their political activities or affiliations, as long as the firing isn’t a form of voter intimidation or coercion,” said Thomas Spiggle, an attorney with The Spiggle Law Firm in Alexandria, Va.

But some state laws and local ordinances offer employees protection. For example, a federal district court in California held that an employee who was outside the U.S. Capitol in Washington, D.C., on Jan. 6, 2021, was involved in a protected political activity, though participating in the insurrection may not be. In this case, the employee was fired after posting two selfies taken at the Capitol on Jan. 6, 2021, although she said she did not enter the Capitol or participate in any rioting. California has a broad view of what political actions are protected, including the espousal of a cause, said Gerald Hathaway, an attorney with Faegre Drinker in New York City.

Government employees enjoy greater protection for their political activity, as long as it occurs outside of work. “Employees working in the private sector often [don’t understand] that the constitutional First Amendment right to free speech applies to government employees but not employees working for businesses,” said Christopher Olmsted, an attorney with Ogletree Deakins in San Diego.

Political Affiliation Discrimination

“To a large extent, private employers can fire an employee based on political affiliation without running afoul of federal law,” said Rick Grimaldi and Leanne Lane Coyle, attorneys with Fisher Phillips in Philadelphia. “Only a few states have laws on the books protecting employees from political affiliation discrimination.”

Political affiliation discrimination could refer to discrimination based on a person’s political beliefs or membership in a political group, added Spiggle.

States that prohibit some form of political affiliation discrimination in the private sector include California, Louisiana, Missouri, New Mexico, South Carolina and Utah, as well as Washington, D.C., he explained.

Political Activity Discrimination

More states prohibit political activity discrimination in the private sector. There is a patchwork of state and local requirements on protecting employee speech by private-sector workers.  Spiggle said states that prohibit some form of political activity discrimination in the private sector include Arizona, California, Colorado, Georgia, Illinois, Iowa, Louisiana, Massachusetts, Minnesota, Nebraska, Nevada, New York, North Dakota, Ohio, Oregon, South Carolina, Utah, Washington and West Virginia, as well as Washington, D.C.

“This is a fairly broad list, but many of these states offer limited protections,” he said. For example, the protections in Georgia and Ohio apply when an employer tries to threaten or intimidate an employee into voting a certain way or not voting at all.

The following actions could be examples of illegal employer conduct based on employee “political activity” in the private sector if there is an applicable state or local law, said Marcy Frost, an attorney with The Law Office of Marcy R. Frost in St. Louis Park, Minn.:

• Refusing to hire someone because the person’s social media activity reveals that the person supports Donald Trump for president or is opposed to an abortion ban.
• Disciplining an employee who signs a petition related to a ballot measure.
• Terminating employment because the employee attended a rally protesting Israel’s military campaign in Gaza.
• Threatening to discharge or discharging an employee who runs for City Council.
• Terminating employment because the employee contributed, or refused to contribute, to the Biden re-election campaign or the National Rifle Association.

Frost said that California’s employer-specific statute applies narrowly to threats of employment termination, rather than all adverse employment actions. The same is true in Minnesota.

New York is a broad at-will state but there are several statutory protections, including a law that disallows discrimination against individuals for engaging in political activities, Hathaway said. “But the New York law has a very narrow definition of political activities,” he said. The law defines such activities as 1) running for public office, 2) campaigning for a candidate for public office or 3) participating in fundraising activities for the benefit of a candidate, political party or political advocacy group.

During the pandemic, when facial coverings were required, many employees wanted to put political statements on their masks, Hathaway said. “We generally advised employers that they could restrict their employees from doing so, depending on what the message was and where the employer was located,” he said.

Some states, such as Colorado, prohibit employers from issuing policies that limit political activity or affiliation, Frost noted. And “Louisiana’s broad statute provides that an employer with 20 or more employees cannot make, adopt or enforce any rule, regulation or policy forbidding or preventing any of his employees from engaging or participating in politics,” she said.

Ordinances and statutes specific to employers sometimes make political activity or affiliation a protected classification. For example, in Madison, Wis., a statute provides that political beliefs are a protected class under the employment discrimination ordinance, Frost said.

Even where a state or local ordinance prohibits discrimination based on political activity, actions an employee takes in the workplace in support of a political party may subject the employee to discipline for reasons unrelated to the political content of the activity, she added. This may be the case where the activity interferes with work performance or violates a specific employment policy, such as a policy against mass emails, solicitation or personal conversations during work hours, or personal attire standards.

Despite all these restrictions, Frost said that many states do not protect anything beyond the employees’ voting rights, so other political action or affiliation in these jurisdictions could be used as a reason for termination.

Federal Legal Considerations

Beyond political campaigns, employers can’t ban employees from engaging in concerted activity to impact legislation, such as advocating for an enhanced minimum wage. Doing so could violate the National Labor Relations Act. In addition, Title VII of the Civil Rights Act of 1964 prevents employees from being treated discriminatorily because of their race, color, religion, sex or national origin.

“However, employers can certainly prohibit political discussions that might violate anti-discrimination or anti-harassment laws, promote hostility or violence, violate company policies such as code-of-conduct rules, or generally infringe on the rights of others,” said Joe Beachboard, an attorney and president of Beachboard Consulting Group in Los Angeles.

Employee Relations Concerns

Of course, employers should consider the ramifications of firing a worker based on their political activities from an employee relations perspective, not just a legal one.

“This issue would cut both ways,” Frost said. It is good employee relations to support your employees, so if someone’s political activity is offensive to other employees and the company’s principles, a termination—if the reason for it is obvious—could boost morale, she said.

On the other hand, Frost noted that employees expect employers to stay out of their personal lives, so a termination could be seen as a threat against all employees.

This article is courtesy of The Society for Human Resource Management (SHRM).