Michael Landen and Mayda Nahhas, Kluger Kaplan Silverman Katzen & Levine. Michael Landen and Mayda Nahhas of Kluger Kaplan Silverman Katzen & Levine.

Recent headline events may have some wondering about how far First Amendment rights extend into the workplace. Jerry Jones, owner of the NFL’s Dallas Cowboys, declared he would bench any player who protested during the national anthem. ESPN suspended anchor Jemele Hill after a retaliatory tweet to Jones’ comments. President Donald Trump has urged the NFL to suspend players who take a knee during the flag salute.

This string of events raises questions about what rights employers, like the NFL, have when employees engage in political expression on company time. While private employers are typically given wide latitude by the courts when it comes to terminating an employee, employers should still proceed with caution when it comes to disciplining an employee for voicing political opinions in the workplace.

As a starting point, there is a significant difference for public and private employers as it relates to an employee’s exercise of his or her First Amendment rights in the workplace. Public sector employers are generally more constrained to restrict employees’ rights to exercise their First Amendment rights in the workplace. For example, while some states may enact laws protecting political speech, there is no federal law forbidding the firing of an employee based on the employee’s political views in a private setting. For example, in 2009 a public employee was terminated from his job as a deputy sheriff when he Facebook “liked” his employer’s opponent’s political Facebook page around an election period. The judge found that the Facebook “like” didn’t amount to speech protected by the First Amendment and thus the employer was free to fire him. However, a reviewing court found otherwise and held that a Facebook “like” was sufficient speech and therefore the employee was free to sue his employer for retaliation. Had this occurred in a private sector employment setting, the outcome would likely have been different.

These situations demonstrate why it is so important for private employers to set clear policies relating to free speech issues, and to enforce these policies uniformly to all employees regardless of race, gender and religion. Employers who implement and stick to these types of policies are in a much better position to draw the line when employees seek to hold unwelcome political demonstrations in the office space or on company time. Employee handbooks and manuals are the most effective tool for regulating activities in the workplace, including the rights and restrictions governing employee speech and demonstrations.

Therefore, it is important for employers to have clear and consistent policies and guidelines in place to define what is considered acceptable and non-acceptable expression by employees. Having such policies in place before an issue arises helps set clear expectations for employees, and combat accusations of retaliation if an employee violates a policy. For instance, in 2011 the NFL denied Peyton Manning’s request when he asked for permission to wear black high-top shoes as tribute to the former Colts quarterback Johnny Unitas during a game. It is important for a private employer to set clear boundaries in their policies and apply them uniformly to each employee so that they don’t run into discrimination issues under Title VII of the Civil Rights Act.

Employees reserve the right to express themselves as they wish on their own time. It is more difficult for an employer to make a case against an employee expressing his or her political beliefs outside of the office, during personal time, unless such actions infringe on the employee’s ability to carry out work-related responsibilities. The objective of implementing policies relating to workplace speech is not to curb employees from exercising their First Amendment rights, but rather to regulate such activities in order to promote consistent rules and regulations for all employees.

Michael Landen is a partner at the Miami firm of Kluger Kaplan Silverman Katzen & Levine and focuses his practice on commercial litigation and labor and employment law. 

Mayda Nahhas is a law clerk at the firm and a third-year law student at Nova Southeastern University’s Shepard Broad College of Law.