Firing Workers When Political Expression Goes Too Far

January 19, 2021

Political expression by employees takes many forms—from friendly office banter to shouting matches that disrupt the workplace. Off-duty political expression can run the gamut, too, from yard signs supporting certain causes or candidates to unlawful activity, such as what the nation witnessed on Jan. 6 at the U.S. Capitol building.

When can employees who’ve engaged in disruptive political expression be disciplined? Employers must tread carefully, as there are constitutional protections for public-sector employees and some state law protections for private-sector workers. But employees who break the law, violate an employer’s policy, disrupt work or harm an employer’s reputation all may be subject to discipline, including termination, legal experts say.

Often, workers in the private sector assume they will be protected by the right to free speech under the First Amendment. “They are wrong,” said Domenique Camacho Moran, an attorney with Farrell Fritz in Uniondale, N.Y. “The First Amendment protects against government action—not action by private employers.”

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  • Related Practice Areas: Labor & Employment
  • Featured Attorneys: Domenique Camacho Moran
  • Publications: SHRM