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Your Rights Retaliation: Political Activity

Giskan Solotaroff Anderson & Stewart LLP

This page provides answers to the following questions:

1. I've been talking to my coworkers about my support of a political candidate. Is it illegal for my employer to retaliate against me for my political activities?

2. Which federal law(s) make it illegal to retaliate on the basis of an employee's political activity?

3. What types of activity are covered by laws against retaliation on the basis of political activity or affiliation?

4. Which employees are protected from retaliation under the law?

5. My employer and many of its top employees are very politically active. We have been asked to donate to political candidates, some of which I strongly oppose. Even though we are told that making a contribution is completely voluntary, I worry that management will determine who gets promotions and raises based upon who supports the company's political agenda. Is it legal for my employer to make employment decisions on that basis?

6. I would like to attend a political rally during my lunch period. We don't have a set time period for lunch, and other employees leave the work premises whenever they want. Can I be disciplined or fired for going to a rally?

7. One of my fellow employees is always sending coworkers e-mails about his political views. I try to ignore them, but other employees often debate him, and the e-mails start flying back and forth. It's so distracting I don't see how anyone gets any work done. Does he have the right to send out political e-mails to everyone at work?

8. One of my coworkers is always stopping employees in the break room to talk about her favorite candidate and to solicit political donations. Is she allowed to do this at work?

9. My coworker and I occasionally get into political discussions at work. While we try to limit the discussion between the two of us, we have a small office, and sometimes our conversations drift to nearby cubicles. One of our coworkers, whose political views are different than ours, claims that our conversations are creating a "hostile work environment" for her. Can she file a lawsuit against us?

10. Who enforces the law?

11. How do I file a complaint?

12. What are the remedies available to me?

13. When must the complaint be filed?

1. I've been talking to my coworkers about my support of a political candidate. Is it illegal for my employer to retaliate against me for my political activities?

Unlike many state and federal employees, most employees in America working for private employers do not have any legal protection against discrimination on the basis of political affiliation or activity. (A public employer can, under certain circumstances, be prevented from firing someone based on political speech (because that would constitute the government itself suppressing free speech.)) Only a mere handful of states (California, New York, and Washington, DC) have laws specifically making it illegal to discriminate on the basis of an employee's political activity or affiliation, while two more states (Colorado and North Dakota) prohibit discrimination on the basis of "lawful conduct outside of work."

Some cities (such as Seattle, Lansing, MI, and Madison, WI) also bar discrimination by private employers on the basis of political orientation, ideology, or similar terms. As many unions and their members are also very politically active, a number of standard union contracts include prohibitions on political activity discrimination, and some employers have also chosen to include this type of discrimination among the categories prohibited in their company's own antidiscrimination policy disseminated to employees.

2. Which federal law(s) make it illegal to retaliate on the basis of an employee's political activity?

Political activity retaliation is not covered by the federal laws that generally prohibit retaliation based on race, color, sex, religion, national origin, age, and disability for private employers, or by the laws protecting against retaliation on the basis of union or concerted activity.

Currently, only California Labor Code %26sect;%26sect; 1101, 1102, New York Labor Code %26sect; 201-d, and Washington, DC D.C. Code Ann. %26sect; 201401.01 have laws specifically making it illegal to discriminate on the basis of an employee's political activity or affiliation, while two more states (Colorado Colo. Rev. Stat. %26sect; 24-34-402.5 and North Dakota N.D. Cent. Code %26sect; 14-02.4-01 prohibit discrimination on the basis of "lawful conduct outside of work." Some union collective bargaining agreements (contracts) include an anti-retaliation clause, which may include political activity. If such a provision is included in your union contract, it gives you a basis to file a grievance if you have been retaliated against because of your political activity.

If you live in one of these states or are under a union contract, and you feel you have suffered political activity retaliation, you may want to consult with an attorney or your union to learn more about any protections that may apply to you.

3. What types of activity are covered by laws against retaliation on the basis of political activity or affiliation?

Assuming that you are covered by such a law, some of the typical types of political activity covered are specifically listed in New York's law Labor Code %26sect; 201-d, which defines protected political activity as:

running for public office,

campaigning for a candidate for public office, or

participating in fund-raising activities for the benefit of a candidate, political party or

political advocacy group

Your state law may be different, however, so you may want to consult with an attorney to learn more about any protections that may apply to you.

4. Which employees are protected from retaliation under the law?

If your state has a law, the law may have a specific definition which requires your employer to have a certain number of employees. The state law also may have specific exemptions, such as for religious employers.

For example, Colorado's law has a conflict of interest provision, which was held by a state court to prevent an airline employee writing a letter critical of the airline to the local newspaper (an otherwise lawful activity) from claiming protection under the law.

5. My employer and many of its top employees are very politically active. We have been asked to donate to political candidates, some of which I strongly oppose. Even though we are told that making a contribution is completely voluntary, I worry that management will determine who gets promotions and raises based upon who supports the company's political agenda. Is it legal for my employer to make employment decisions on that basis?

Unfortunately, it is legal for an employer to make employment decisions on the basis of an employee's political participation (or lack of participation), unless the employee is in a state where making employment decisions on this basis is against the law.

In the last presidential election, a case where a worker was fired for having a presidential candidate's bumper sticker on her car received widespread attention, and shocked many workers who believed their political views were insulated from their bosses' whims. [The good news is that the fired employee received a job with the candidate she supported. The bad news is that her job ended when the candidate ultimately lost the election.] The reality is that more legal protection is needed if workers are to have the ability to safely express political views, especially those contrary to their employers' views.

Wise employers will recognize the positive effects that unrestricted political engagement can have for employees, including improved morale, increased socializing, and the possibility of benefiting the company's business through connections established in political groups. If your employer does not respect political differences among employees, you should consider your next career move and whether the difference in political philosophy is important enough to cause you to rethink your future at this company.

6. I would like to attend a political rally during my lunch period. We don't have a set time period for lunch, and other employees leave the work premises whenever they want. Can I be disciplined or fired for going to a rally?

In most states, since there is no law against political activity retaliation, an employee could be disciplined or fired for leaving work to attend a rally or other political event, even if employees were allowed to leave the premises for lunch. However, employers who allow their employees to leave the premises and choose what activity to engage in during their defined lunchtime period most likely would conclude that it wouldn't be worth the effort to clamp down on this type of political participation.

While an employer could choose to strictly enforce its lunchtime period and penalize any employees who were even a minute late back to work, most companies recognize the effect on morale that this kind of response is likely to create. In addition, exempt employees have even more leeway when it comes to temporary absences from work, so realistically it would be difficult for employers to prevent employees from using their lunch breaks to engage in political activity.

However, employees who do not have legal protection should be aware of the risk, especially if the political views you support conflict with the expressed political views of the company and/or your supervisors. It's always wise not to let any outside activities interfere with your work during working hours. Even if your company doesn't strictly enforce the lunch hour, you should not take advantage by being absent for an excessive amount of time, regardless of the reason.

7. One of my fellow employees is always sending coworkers e-mails about his political views. I try to ignore them, but other employees often debate him, and the e-mails start flying back and forth. It's so distracting I don't see how anyone gets any work done. Does he have the right to send out political e-mails to everyone at work?

Many employees now communicate with each other at work (and with the rest of the world) via e-mail, using their employer's resources (computers, servers, and internal networks) to do so. While using e-mail in many cases can be an efficient way to communicate with coworkers, it can also be a distraction or lead to conflict when the purpose of the communication is not strictly work-related.

Even states with political retaliation or "lawful activity" laws probably do not offer much legal protection for e-mail exchanges, even political ones, taking place during work hours. Most cases analyzing the rights of employees to communicate using the company's networks have favored the employer, because in most circumstances, employees do not have a reasonable expectation of privacy when they use the employer's system to transmit the e-mail.

Many companies now have policies governing use of the company's e-mail system, which may give them even stronger grounds to discipline or fire employees if the e-mails violate company policy. The following policy, typical of many policies in existence, would permit an employer to take disciplinary action, if it deemed it necessary to do so, while placing employees on notice as to what kinds of communications are not permissible.

Sample E-Mail Policy

E-mail will not be used for personal gain, outside business activities, political activity and fundraising, or charitable activity not sponsored by [Employer]. E-mail will not be used to promote discrimination on the basis of race, color, national origin, age, marital status, sex, political affiliation, religion, disability, or sexual harassment; or to promote personal, political, or religious business or beliefs.

Even if your employer does not have an e-mail policy, to the extent that political discussions via e-mail are affecting productivity or causing distractions, your employer may wish to curtail or limit them. There is no reason why employees cannot engage in such debates using their personal e-mail accounts, outside of work hours only, involving only those who choose to participate.

You may wish to start by talking with the employee who sends the e-mails and asking to be removed from his or her e-mail list. If that does not solve the problem, you may wish to investigate whether your employer has an e-mail policy in effect that applies to this situation. Involving the human resources department can be helpful, if HR is willing to neutrally remind employees of the diversity of political views in the workplace, encouraging them to be respectful of each other and mindful of the effect their words have on others.

8. One of my coworkers is always stopping employees in the break room to talk about her favorite candidate and to solicit political donations. Is she allowed to do this at work?

Some companies have anti-solicitation policies, which ban any solicitation, for any reason, on the employer's premises. Some complain that employers enforce these policies too strictly, and ban such activities as Girl Scout cookie sales. Others complain that they are inconsistently enforced, with fundraising allowed only for certain "pet causes."

If you are offended by the solicitation, you may wish to contact your company's Human Resources (HR) department to find out if there is a policy. If there is not a policy, then it is up to the company's management to determine whether or not solicitation will be allowed. There is no law that governs workplace solicitation in private workplaces.

9. My coworker and I occasionally get into political discussions at work. While we try to limit the discussion between the two of us, we have a small office, and sometimes our conversations drift to nearby cubicles. One of our coworkers, whose political views are different than ours, claims that our conversations are creating a "hostile work environment" for her. Can she file a lawsuit against us?

Probably not. Other federal and state laws which have been used to prohibit hostile work environments on the basis of sex, race, and religion, for example, do not make workplace political activity or expression illegal. Even if political activity was included, there is a requirement that the conduct constituting the hostile work environment be "severe" or "pervasive," making it unlikely that occasional conversations pose a risk of legal liability.

However, you may want to find another location to hold your conversations, or limit them to hours outside of work, so that you do not create workplace conflict or cause distractions affecting productivity.

10. Who enforces the law?

Protections under state laws are generally enforced by state anti-discrimination agencies, which may be called "fair employment," "civil rights," or "human rights" commissions or agencies. For more information about your state agencies, see our page on filing a complaint.

11. How do I file a complaint?

To file a complaint under state and local statutes, please contact your state or local anti-discrimination agency or an attorney in your state. For more information, see our page on filing a complaint.

12. What are the remedies available to me?

To learn more about remedies available under state laws, please contact your state or local anti-discrimination agency or an attorney in your state. For more information, see our page on filing a complaint.

13. When must the complaint be filed?

Because there are many sources of state laws relating to retaliation based upon political activity, there are too many different deadlines to summarize here. To protect your legal rights, it is always best to contact your state governmental agency or an attorney promptly when discrimination is suspected. For more information, see our page on filing a complaint.

This page was updated on December 1, 2012



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