Free Speech

Laws Protecting Private Employees' Speech and Political Activity Against Employer Retaliation: Covering a Wide Range of Speech

California, Colorado, Connecticut, Louisiana, Minnesota, Missouri, Nebraska, Nevada, South Carolina, Utah, West Virginia, Ann Arbor, Seattle, Madison, and Guam

|The Volokh Conspiracy |

[This is a serialization, with slight updates, of my 2012 article on the subject; for the Introduction (which also discusses my ambivalence about such laws), see this post.]

We now turn to specific laws that cover a pretty broad range of speech (as opposed to just, say, endorsing or opposing candidates for office).

[A.] Exercising "Rights Guaranteed by the First Amendment"—Connecticut

Connecticut bars employment discrimination based on any "exercise … of rights guaranteed by the First Amendment." Connecticut courts have interpreted this as largely applying the same rules to private employers as are applied to public employers under the First Amendment.

  1. Connecticut courts apply the Connick v. Myers rule that employee speech is protected only if it is on "matters of public concern" and not motivated by the employee's personal employment grievance.
  2. They also apply the Pickering v. Board of Education test, under which speech is unprotected if its value is exceeded by its potential to disrupt the employer's operation.
  3. And they generally apply the Garcetti v. Ceballos rule, under which even otherwise public-concern and nondisruptive speech is unprotected when it is part of the employee's job duties (though it might still be protected, even when part of job duties, if involves "comment on official dishonesty, deliberately unconstitutional action, other serious wrongdoing, or threats to health and safety can weigh out in an employee's favor").

Connecticut: [No employer may] discipline or discharge [an employee] on account of the exercise by such employee of rights guaranteed by the First Amendment … , provided such activity does not substantially or materially interfere with the employee's bona fide job performance or the working relationship between the employee and the employer ….

Courts have held that this statute does not apply to decisions denying promotion, or to decisions denying tenure (even though this would generally lead to the expiration of the employee's contract). Even more clearly, the statute would not apply to decisions not to hire.

[B.] Engaging in "Expression … Regarding … Religious, Political, or Personal Convictions"—Utah

Utah's statute was enacted in 2015, as part of a package deal in which employers were also barred from discriminating based on sexual orientation. It covers, like the Connecticut statute, a broad range of speech; there are no cases so far interpreting it, but it appears to set up a fairly demanding threshold that the employer has to overcome to justify restricting the speech.

Utah: (1) An employee may express the employee's religious or moral beliefs and commitments in the workplace in a reasonable, non-disruptive, and non-harassing way on equal terms with similar types of expression of beliefs or commitments allowed by the employer in the workplace, unless the expression is in direct conflict with the essential business-related interests of the employer.

(2) An employer may not discharge, demote, terminate, or refuse to hire any person, or retaliate against, harass, or discriminate in matters of compensation or in terms, privileges, and conditions of employment against any person otherwise qualified, for lawful expression or expressive activity outside of the workplace regarding the person's religious, political, or personal convictions, including convictions about marriage, family, or sexuality, unless the expression or expressive activity is in direct conflict with the essential business-related interests of the employer.

[C.] Engaging in Political Activities—California, Colorado, Louisiana, Minnesota, Missouri, Nebraska, Nevada, South Carolina, West Virginia, Guam, Ann Arbor, Seattle, and Madison

These states bar employers from retaliating against employees for engaging in political activities. "Political activities" is broader than just partisan or electoral activities, and courts interpreting the California statute have so held. "[P]olitical activities," the California Supreme Court has stated, "cannot be narrowly confined to partisan activity," but instead cover any activities involving the "espousal of a candidate or a cause," including participating in broad social movements such as the gay rights movement. And a federal district court, following the California Supreme Court decision, has likewise read "political activities" to cover the holding of certain views on drug and alcohol policy.

A few federal district courts in South Carolina have taken a narrower view: The South Carolina statute's protection of "political opinions" and "political rights and privileges guaranteed to every citizen by the Constitution," they have held, is limited to "matters directly related to the executive, legislative, and administrative branches of Government, such as political party affiliation, political campaign contributions, and the right to vote." One district court held that the display of the Confederate flag is therefore not covered. Another held the same about a statement that Muslims are disproportionately likely to be terrorists, and that terrorists are generally Muslims.[1]

This, though, seems inconsistent with the statutory language, which speaks of "political opinions" and "political rights and privileges guaranteed to every citizen by the Constitution and laws of the United States or by the Constitution and laws of this State." Opining on broad current affairs topics has generally been seen as "political speech," even when the speech does not directly connect to an election. And California courts have interpreted the similar terms "engaging … in politics" and "political activities" as covering "espousal of … a cause" as well as of a candidate, and including, for instance, the act of declaring oneself to be gay or lesbian. Likewise, a Fourth Circuit panel opinion, later reversed on procedural grounds, concluded that display of the Confederate flag could constitute the exercise of "political rights."

Even under the broad California view, though, some courts have held that activities aimed at improving labor conditions at the particular employer and advocacy of forcible or violent conduct do not qualify as "political" within the terms of the statute. Two related South Carolina federal district court cases have also held that testimony before a government agency, made in response to a request by that agency, does not qualify as "exercising a political right." And a third South Carolina federal district court case concluded that an employee's "expressions of concern about his coworkers"—which consisted of statements that the coworker pharmacy technicians "lacked the necessary experience and competence to safely fill customers' prescriptions"—"were not political in nature" and thus were not covered.

California: No employer shall make, adopt, or enforce any rule, regulation, or policy:

(a) Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office.

(b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees.

No employer shall … attempt to coerce or influence his employees through or by means of threat of discharge … to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.

Colorado: It is [a misdemeanor] for any … employer … to make, adopt, or enforce any rule, regulation, or policy forbidding or preventing any of his employees from engaging or participating in politics or from becoming a candidate for public office or being elected to and entering upon the duties of any public office.

Louisiana: Except as otherwise provided in R.S. 23:962, no employer having regularly in his employ twenty or more employees shall

[a] make, adopt, or enforce any rule, regulation, or policy forbidding or preventing any of his employees from engaging or participating in politics, or from becoming a candidate for public office …

[b] adopt or enforce any rule, regulation, or policy which will control, direct, or tend to control or direct the political activities or affiliations of his employees, [or] …

[c] coerce or influence, or attempt to coerce or influence any of his employees by means of threats of discharge or loss of employment in case such employees should support or become affiliated with any particular political faction or organization, or participate in political activities of any nature or character ….

23:962: Any planter, manager, overseer or other employer of laborers who, previous to the expiration of the term of service of any laborer in his employ or under his control, discharges such laborer on account of his political opinions, or attempts to control the suffrage or vote of such laborer by any contract or agreement whatever, shall be fined not less than one hundred dollars, nor more than five hundred dollars and imprisoned for not more than one year.

Minnesota: [It shall be a gross misdemeanor for a]n individual or association … [to] engage in economic reprisals or threaten loss of employment or physical coercion against an individual or association because of that individual's or association's political contributions or political activity. This subdivision does not apply to compensation for employment or loss of employment if the political affiliation or viewpoint of the employee is a bona fide occupational qualification of the employment.

Missouri: [It shall be a misdemeanor o]n the part of any employer [to] mak[e], enforce[e], or attempt[] to enforce any order, rule, or regulation or adopt[] any other device or method to prevent an employee from

[a] engaging in political activities,

[b] accepting candidacy for nomination to, election to, or the holding of, political office,

[c] holding a position as a member of a political committee,

[d] soliciting or receiving funds for political purpose,

[e] acting as chairman or participating in a political convention,

[f] assuming the conduct of any political campaign,

[g] signing, or subscribing his name to any initiative, referendum, or recall petition, or any other petition circulated pursuant to law ….

[It shall be a misdemeanor and civilly actionable for any employer to:]

(1) … discriminate or threaten to discriminate against any employee … by reason of his political beliefs or opinions; or …

(5) [d]iscriminate or threaten to discriminate against any … employee in this state for contributing or refusing to contribute to any candidate, political committee or separate political fund ….

Nebraska: Any person who … attempts to influence the political action of his or her employees by threatening to discharge them because of their political action … shall be guilty of a Class IV felony.

Nevada: It shall be unlawful for any … [employer] to make any rule or regulation prohibiting or preventing any employee from engaging in politics or becoming a candidate for any public office in this state.

South Carolina: It is unlawful for a person to … discharge a citizen from employment … because of political opinions or the exercise of political rights and privileges guaranteed to every citizen by the Constitution and laws of the United States or by the Constitution and laws of this State.

West Virginia: [It is a misdemeanor for any employer or agent of an employer to] give any notice or information to his employees, containing any threat, either express or implied, intended or calculated to influence the political views or actions of the … employees ….

Ann Arbor (Michigan): No person shall discriminate in the hire, employment, compensation, work classifications, conditions or terms, promotion or demotion, or termination of employment of any individual … [based on "political beliefs," defined as "[o]ne's opinion, whether or not manifested in speech or association, concerning the social, economic, and governmental structure of society and its institutions," "cover[ing] all political beliefs, the consideration of which is not preempted by state, federal or local law," except "political beliefs that interfere or threaten to interfere with his or her job performance"].

Seattle (Washington): Employer[s may not discriminate … by reason of … political ideology …] … with respect to any matter related to employment. "Political ideology" means any idea or belief, or coordinated body of ideas or beliefs, relating to the purpose, conduct, organization, function or basis of government and related institutions and activities, whether or not characteristic of any political party or group. This term includes membership in a political party or group and includes conduct, reasonably related to political ideology, which does not interfere with job performance.

Madison (Wisconsin): [Employers may not] discriminate against any individual [in employment] … because of [such individual's] protected class membership … [including "political beliefs," defined as "one's opinion, manifested in speech or association, concerning the social, economic and governmental structure of society and its institutions," "cover[ing] all political beliefs, the consideration of which is not preempted by state or federal law"].

Guam: Every employer … is guilty of a misdemeanor who within ninety (90) days of any election … makes or communicates … threats, express or implied, intended or calculated to influence the political opinions or actions of the employees.

The Colorado and Louisiana statutes also include clauses that effectively state, "Nothing in this section shall be construed to prevent the injured employee from recovering damages from his employer for injury suffered through a violation of this section." This language, borrowed from the California statute, is the language that California courts have interpreted as providing for tort liability for violations of the prohibition.

A 1983 Third Circuit case, Novosel v. Nationwide Ins. Co., suggested that Pennsylvania would follow a similar rule as a common-law matter: The court held that, under Pennsylvania law, private employers could not fire an employee for "political expression and association" unless the employee's activities substantially interfere with the employee's job. But more recent Pennsylvania state court decisions suggest that Novosel is no longer good law.

 

[1]. Powell v. Media Gen. Operations, Inc., 2011 WL 4501836 (D.S.C. Apr. 26, 2011) (Magistrate Judge's report and recommendation), approved by 2011 WL 4501564 (D.S.C. Sept. 28, 2011), settled while on appeal, Order in Powell v. Media Gen. Operations, Inc., No. 11-2204 (Dec. 1, 2011). The speech in Powell took place right after the Fort Hood mass murder, which was committed by a Muslim U.S. soldier. Plaintiff told a coworker (who apparently wasn't a Muslim, Amended Complaint in Powell (filed Jan. 7, 2011)), "That's a shocker that a Muslim would be a terrorist!" The coworker responded, "Not all Muslims are terrorists." Plaintiff replied, "Well, that might be so, but it seems to me that all terrorists are Muslim." This, the court said, was not the expression of "political opinions" because it was not "of or relating to government, a government, or the conduct of government."

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