As the 2024 Election approaches, Arizona, a state renowned for its swing state status and diverse political perspectives, can anticipate a rise in political speech in the workplace. Whether personal political beliefs are impacting professional relationships or inconsistent political policies from employers are inciting internal disruption, employees and employers alike should be mindful of the legal implications surrounding political talk in the workplace and consider how guidance from an employment attorney can assist in navigating this politically charged landscape.

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Legal Framework of Political Speech at Work

While political speech is protected in public roles within federal, state, or local governments, as well as in public spaces in the U.S. under the First Amendment, the boundaries regarding political speech are less clear for private employers, such as large companies or small businesses. Private employers have the liberty to establish and regulate policies concerning political speech within their organizations. By implementing workplace policies, employers set clear guidelines on political activity to uphold professionalism, foster respect, and prevent disruption in the work environment.

Arizona is an at-will employment state, meaning employers can generally terminate employees for any lawful reason, including expressions of contrary political views. Although terminating a private employee due to the expression of their contrary views may not violate the First Amendment, it can potentially violate federal law such as the National Labor Relations Act, (NLRA), which protects employees’ rights to engage in forms of political speech and activity if pertaining to working conditions and terms of employment.

This speech may include discussion of compensation, benefits, advocating for candidates who support fair wages, and other relevant issues directly impacting their work environment. It is important to understand that not all political speech is protected under the NLRA, and there are limitations based on the context and content of the speech.

Troy P. Foster is a partner at The Foster Group.

Employee Rights for Political Expression

As an employee in Arizona, you have a right to political expression and participation when outside of work. This political involvement includes attending a rally or a protest, volunteering for a candidate’s campaign, or openly sharing your political views on social media. However, in the workplace, private employers have the authority to manage how employees express their political views.

As an employee, it is important to understand the guidelines regarding political expression set by your employer.  This knowledge and understanding of your rights can help protect you if you experience discrimination, harassment, or wrongful termination due to your political beliefs or activities.

And if you are planning to head to the polls during the workday to vote this upcoming Election Day, keep in mind that Arizona Revised Statute § 16-402 requires Arizona 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. Employers can designate the hours during which the employee can take off work to vote but cannot deduct employees pay for work time missed work time or penalize employees for missing work in the three consecutive hours provided for voting.

Managing Political Speech as an Employer

To better serve their teams, employers must work proactively to address political activity in the workplace by clarifying the types of speech and conduct permitted as well as the consequences of violating policies. An employment attorney can help companies craft clear, lawful boundaries on political activity through policies comply with relevant laws while continuing to uphold the values and objectives of the business.

If you are an employer, some of your policies should include: a non-discrimination and non-retaliation policy that states that the company prohibits discrimination or retaliation against employees based on their political beliefs or activities; a code of conduct that outlines acceptable behavior in the workplace and maintains a positive environment; and a social media policy to manage how employees may represent the brand online.

In instances of political expression, if employees begin to visually show support for a candidate through such things as wearing a t-shirt or hat with their favorite candidate or hanging a poster or signage in their office, these can raise concerns about potential disruption. Employers should review their dress code policies to proactively mitigate potential issues before they arise.

Employees may use company-provided devices, such as laptops or phones, to engage in political activities, potentially disrupting productivity. This can be addressed through a workplace device policy.

Amidst heightened political tensions and global unrest, employers must, above all, provide safety and security for employees from discrimination or harassment, creating an environment where they feel comfortable reporting these issues without fear of retaliation.

What Can Employees Do?

If you are an employee in Arizona and feel you have been wrongfully terminated due to your political speech or affiliations, there are steps you can take to protect your rights. First, it is vital to document any instances of discrimination, retaliation, or harassment you may have experienced in the workplace related to your political views. This includes saving relevant emails, memos, or records of conversations with management or coworkers.

Also, review your employer’s handbook and employment contract to determine if the company has any specific policies related to political expression, and evaluate if your speech is protected under those policies. To help you better understand your legal rights, advise you on the legal process and provide options available to you as an employer, consider consulting with an experienced employment attorney, such as The Foster Group.

Depending on the circumstances of your case, you may have grounds to file a complaint with the Equal Employment Opportunity Commission (EEOC) or the Arizona state labor board. In order to prove unlawful discrimination, employees will need to present evidence demonstrating that your political affiliation or legally protected speech was a substantial motivating factor behind employment action taken against you.

As Arizonans head to the polls this year to vote in the 2024 Election, together we can maintain an effective and productive work environment that protects our rights as people and upholds our democracy.

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Author: Troy P. Foster is a partner at The Foster Group, a powerful advocate for clients with employment law, human resources or health care legal challenges.