As our nation gears up for the 2020 presidential election in a climate that seems more politically charged than ever, talk of politics will inevitably reach the watercooler at work. However, many employees may not realize that their political speech is not necessarily protected in the workplace. The First Amendment states that “Congress shall make no law … abridging the freedom of speech” (USCS Const. Amend. 1), but that restraint applies only to government; the Constitution does not protect an employee’s freedom of speech if he or she works for a private entity. Thus, private employers—unlike public employers—have a wide latitude of discretion to restrict political speech in the workplace. However, there are important exceptions to this general rule.

The National Labor Relations Act

First, the National Labor Relations Act (NLRA) protects both union and non-union employees working in the private sector who engage in certain concerted activity related to the terms and conditions of their employment. 29 U.S.C.S. §151 et seq. Specifically, Section 7 provides that “[e]mployees shall have the right … to engage in … concerted activities for the purpose of collective bargaining or other mutual aid or protection ….” 29 U.S.C.S. §157. Section 8 (a)(1) makes it an unfair labor practice “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in” Section 7. 29 U.S.C.S. § 58.

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