Executive Summary
In light of the Middle East conflict and corresponding domestic protests and tensions, many private employers are choosing to regulate political speech in and out of the workplace. Employers are engaging in three increasingly-common practices: (1) prohibiting political speech and activities at work; (2) disciplining employees, and refusing to hire candidates, based on their out-of-work political speech and activities; and (3) requiring employees to attend employer-sponsored political presentations at work.
This article explains that these practices are often, but not always, permissible for private employers. Most US employees are employed at-will, which means that they can be dismissed for any lawful reason, including their political speech and activities, as long as the political speech and activities aren't protected by law.
Despite common misconceptions, the First Amendment does not protect employee speech from private employer actions; it only protects speech from actions by the government. The National Labor Relations Act protects certain labor-related political speech concerning workplace conditions and similar matters, but not other political speech. State laws typically provide the strongest protections for workplace political speech related to the Middle East conflict, but those laws vary widely between states, and many states have no protections at all. Employers should also be aware that, when they don't impose content-neutral speech restrictions, they face the risk of discrimination claims under federal and state anti-discrimination laws. This article discusses the relevant legal considerations in detail.
Introduction
The renowned law firm, Sullivan & Cromwell, recently announced that it will be “extremely vigilant” in its hiring decisions in light of pro-Hamas protests and encampments at universities throughout the country.[1] The firm plans to check resumes to confirm that candidates were not involved with pro-terrorist groups, it will conduct “thorough reviews” of each candidate’s online presence, and it will analyze “all campus organizations the student has been or is currently a part of,” so the firm can “monitor activities from those groups that do not align with [its] ethical standards.”[2]
Sullivan & Cromwell’s policies are reminiscent of the time-honored case of McAuliffe v. Mayor and Board of Aldermen of New Bedford, which many law students read in their Constitutional Law courses. In the late 1800s, a Massachusetts police officer, John McAuliffe, was dismissed from his job for his involvement in certain political activities. After McAuliffe challenged the decision on constitutional grounds, the case ended up before the Massachusetts Supreme Court. Ruling against the police officer, Justice Oliver Wendell Holmes famously wrote: “The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”[3] About 130 years later, this remains the fate of much political expression in the modern private workplace.[4]
In light of the current conflict in Israel and Gaza, and the resulting protests and political tensions in the US, many employers are regulating the political expression of candidates and employees in various ways. In this article, we focus on three specific employment practices:
(1) prohibiting employees from engaging in political activism and imparting their political views on colleagues and clients in the workplace;[5]
(2) requiring employees to attend employer-sponsored presentations advocating for management’s political positions;[6] and
(3) initiating disciplinary action against employees for their out-of-work political activities, and refusing to hire candidates who hold contrary political views to those of the employer.[7]
As explained below, with limited exceptions, these practices are generally permissible for private employers. It’s important to note that this article does not consider the free speech protections that apply to public sector employees.[8] In the pages that follow, we explore the legal foundations of these practices and explain why the employers who regulate political expression in and out of the workplace are often on solid legal ground.
(1) Political Speech in the Workplace
Hypothetical Scenario
To frame the legal principles that follow, let’s consider the following hypothetical. An employee of Acme Corporation, John Smith, has strongly held political views about the Israeli-Palestinian conflict. Acme has noticed that John regularly shares his political views with coworkers, many of whom hold opposing views and, in any event, prefer to avoid political discussions in the workplace. Additionally, Acme has discovered that John has been expressing his political views to customers, many of whom find his views offensive. John’s supervisor instructs him to cease these practices, but John responds by asserting a purported First Amendment right to freedom of speech. Let’s consider what recourse is available to Acme.
At-Will Employment
Most employees in the United States are employed at-will.[9] In an employment-at-will relationship, the employee can leave at any time and for any reason, and the employer can separate the employee at any time and for any lawful reason.[10] On the other hand, even if an employee is employed at-will, an employer cannot end the employment relationship (or take other negative employment action) for a reason that is protected by law.[11] Thus, employers are free to regulate political speech among their employees, and they are free to make hiring decisions based on political speech, as long as the political speech is not protected.[12] This raises an obvious question: When is political speech protected by law?
We are about to consider three distinct bodies of law that protect certain political speech under certain circumstances. Specifically, we will consider: (1) state law protections that apply to employee political speech, with the caveat that many states do not have such protections; (2) the National Labor Relations Act, which protects labor-related political speech, but not other political speech; and (3) state and federal anti-discrimination laws, which are the least obvious and most indirect sources of potential protection. Employers are generally permitted to regulate political speech in and out of the workplace unless one of these laws applies and makes it unlawful to take negative employment action based on the political speech in question.[13]
The Fallacy of First Amendment Workplace Protections
Before considering the laws that may protect workplace speech, let’s begin by addressing a common misconception. Many employees believe that they have a First Amendment right to engage in political speech at work, and that the First Amendment somehow protects them from negative employment consequences for their out-of-work political activities.[14] While we can debate whether the First Amendment should protect workplace political speech – and, as discussed below, at least one state mandates that it does – the First Amendment only protects free speech from government action, rather than the action of private employers.[15] While other laws may protect employee political speech from workplace consequences, the First Amendment is not one of them.
The National Labor Relations Act
The National Labor Relations Act (“NLRA”) protects employees’ rights to engage in certain labor-related activities in and out of the workplace, such as collective bargaining, speaking out about working conditions, discussing compensation, and supporting political candidates who advocate for fair wages.[16] Rather than protecting all political speech, the NLRA only protects “concerted activities for the purpose of . . . mutual aid or protection,” which contemplates political speech that’s intended to “improve the lot” of employees.[17] Attorney David Oberly explains the lay of the land as follows:
To fall within the scope of [“mutual aid and protection”], workers do not necessarily have to engage in activity that supports fellow employees [of the same employer], but rather merely activity in the furtherance of the interests of employees generally. Accordingly, activity such as participation in a protest which focuses on minimum wage laws or immigration bans would most likely come within the scope of concerted activity, making it a violation of [the NLRA] to discipline or terminate an employee for taking part in such an event. Conversely, the exercise of speech on matters that might fall under the umbrella of “hate speech” would not be afforded protection . . . , and employers may freely discipline or fire workers who are found to have been responsible for such speech . . . .[18]
As University of Minnesota law professor, Charlotte Garden, writes for the Economic Policy Institute: “The statutory language is limited to employees’ ‘concerted activities for…mutual aid or protection,’ meaning that workers’ speech can fall through the cracks if it is not collective, if it is targeted at a concern that is not workplace-related, or if it is not action-oriented.”[19] When political speech is “in furtherance of the employee’s own political agenda,” that speech is not protected by the NLRA – which is the likely outcome regarding the types of speech that employers like Sullivan & Cromwell are prohibiting.[20]
State Law
Some states have implemented laws to protect employees who engage in workplace political speech.[21] Connecticut is a common example because of the state’s relatively expansive protections.[22] In an article for the National Law Review, Attorney Abby Warren explains that Connecticut employers cannot discipline employees for engaging in political speech at work, as long as the speech “does not interfere substantially or materially with the employee’s job performance or relationship with the employer and addresses a matter of public concern, such as . . . social justice.”[23] While conversations that disrupt working time and operations are not protected in Connecticut, other forms of workplace political speech are.[24] Attorney Melinda Kaufman explains the Connecticut law as follows:
[Connecticut law] extends the protection of rights of free speech under the federal and Connecticut constitutions to employees in private workplaces. In order to establish a claim under this statute, an employee must show that (1) she engaged in constitutionally protected speech, (2) her employer took an adverse action against her, and (3) there was a causal relationship between the protected activity and the adverse action. In order to be protected, the speech at issue must be made as a citizen on matters of public concern, as opposed to being made by an employee on matters of personal interest. But, proving only these three elements is not sufficient. In addition, the employee’s exercise of her free speech rights must not “substantially or materially interfere with [her] bona fide job performance or the working relationship” with her employer.[25]
Under Connecticut law, an employer seeking to regulate political speech may argue that unwelcome and/or offensive political speech that takes place in the workplace interferes with job performance and the working relationship, putting it outside the scope of the law’s protections.[26] However, this would be a more challenging argument to make regarding out-of-work political speech, which we discuss in more detail in a later section of this article. While Connecticut law does more to protect out-of-work political speech than in-office political speech, the law potentially applies to both.[27]
In any event, Connecticut is but a single state, and it has notably expansive protections of free speech in the employment context.[28] These types of laws vary significantly across state lines, and many states have few, if any, employment protections for political expression in the workplace.[29] Based on a 2016 survey conducted by the law firm Ogletree Deakins, numerous states did not have any applicable laws in place.[30] University of Chicago law professor, Geneviev Lakier, explains the landscape as follows:
Currently, regulations concerning speech and private employment oscillate wildly from state to state — about half of states have no protections for private employees who express political beliefs, while others have laws that vary in terms of scope.
There are only a few states . . . where regulations are broad enough that they could protect the kind of political speech we’ve seen in the past few weeks [e.g., the pro-Palestinian protests on college campuses]. And even then, in some of those states, there is an incitement of violence exception. So, even in those states, there will be arguments about why your political speech is not protected. But at least someone fired would be able to bring a claim.
Still, there’s no federal law, in half the states you have no protection, and in many of the other states, it’s going to be very, very limited protection.[31]
The key takeaway for employers is that they need to check the requirements of their state’s laws before taking employment action based on political speech. In many states, if not most, employers will find that the law is silent regarding political speech that takes place at work.[32]
Title VII of the Civil Rights Act and State Civil Rights Laws
Assuming that neither the NLRA nor a state political speech law protects the political speech at issue, another important consideration for employers lies in the federal and state anti-discrimination laws. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of race, color, religion, sex, and national origin.[33] Many state laws also protect these characteristics, among many others.[34]
While some argue that it should, Title VII does not protect political speech.[35] For example, after a hospital employee was separated for sending an email in opposition to Black Lives Matter, the court rejected his Title VII claim and cited multiple federal cases holding that neither political speech nor political ideology is protected by the federal anti-discrimination law.[36]
Nevertheless, Title VII can still be implicated when employers regulate political speech in and out of the workplace. Practitioners caution that, if an employer prohibits certain political positions while endorsing others, then they may invite employee actions claiming discrimination on the basis of a protected class.[37] As Attorney Elizabeth Whitman writes for JD Supra:
Legally, the safest practice is for employers who want to limit political discourse to have content-neutral restrictions that apply to all employees. For instance, they might limit all political discourse, rather than just anti-Israel discussions. Yet, in most states and localities, a content-based restriction is not necessarily unlawful. . . . Federal law is unclear about whether a content-neutral employer policy that restricts employees’ ability to support a cause tied to their personal race, national origin, or religion could be unlawful discrimination. Therefore, most attorneys would recommend that employers adopt consistently applied content-neutral policies that don’t disproportionately affect employees in a protected class.[38]
Along the same lines, Attorney Robert Baldwin gives employers the following guidance in a recent interview with Bloomberg: “If you are going to go the direction of prohibiting some employees from talking about [the Israeli-Palestinian conflict], then you will want to prohibit the entire discussion, not one side or the other because then you’re going to get into the territory of discrimination.”[39]
These words of caution played out in Tannous v. Cabrini University, a 2023 case coming out of the Eastern District of Pennsylvania.[40] In Tannous, a Palestinian-American professor was separated by his university for posting anti-Israel and anti-Semitic content on social media.[41] The professor brought an action challenging the separation on Title VII grounds.[42] Ruling for the university, the court wrote:
[The professor] alleges that his employer wrongfully accused him of antisemitism because he is Palestinian-American. But, in so doing, [he] equates a termination due to his race or ethnicity – invidious distinctions prohibited by law – with a termination due to a belief that his statements were antisemitic. These concepts are distinct. Even if the belief that his statements were antisemitic is unfair or incorrect, courts considering the issue have concluded that such conduct does not give rise to a cognizable claim under Title VII because it is not based on the employee’s status as a protected minority. . . . And considering the rhetoric employed in the tweets at issue – suggesting in part that Israel should be “eradicated” and characterizing it as a “Nazi” state – I am persuaded that it would be objectively reasonable for any employer to be concerned about such a choice of language, regardless of the author’s ethnic identity.[43]
While this claim concerns race and ethnicity, plaintiffs can bring similar Title VII actions based on the argument that workplace regulation of political expression somehow impedes their religious observance and beliefs.[44] The US Department of Labor has specifically rejected this position, explaining that “religion typically concerns ‘ultimate ideas’ about ‘life, purpose and death,’ while social, political and/or economic philosophies and mere personal preferences are not ‘religious’ beliefs.”[45] Putting the merits of their argument aside, plaintiffs have nevertheless alleged that their political and social beliefs, such as membership in the KKK, are somehow religious in nature.[46]
Although courts typically reject these arguments,[47] litigators often share the following aphorism with their clients: “In litigation, even if you win, you lose.”[48] This is because litigation is an expensive and burdensome process, regardless of whether a party ultimately prevails.[49] Employers who prefer to minimize the risks of litigation – and who want to avoid becoming a test case regarding the limits of Title VII’s protections – would be well-served to heed the advice of practitioners who argue that content-neutral restrictions on political speech reduce the likelihood of Title VII litigation.[50]
However, for the reasons already discussed, federal and state anti-discrimination laws do not prohibit the regulation of political speech in the workplace, but they do increase the potential for litigation risk. Despite the risk that an enterprising plaintiff may bring a discrimination claim, many employers have chosen to make employment decisions based on their political leanings anyway, risks of litigation be damned.[51] The anti-discrimination laws are not an obvious source of protection for workplace political speech, but this is not to say that plaintiffs won’t test the limits of these laws anyway (even if their arguments ultimately fail).[52]
Revisiting Our Hypothetical
So, where does this leave our hypothetical employee, John Smith, who is engaging in unwelcome political discussions with coworkers and customers at Acme Corporation?
As a starting point, the First Amendment does not protect private workplace speech, so John’s claim to a First Amendment right to free speech does not apply in this context. Assuming John is employed at-will (and most US employees are), Acme can prohibit political speech in the workplace, and separate John for breaching this prohibition, as long as doing so does not violate any specific state laws or federal protections.
For its part, the NLRA protects workplace speech concerning the mutual aid or protection of workers – it does not typically cover individual political advocacy that’s unrelated to workplace and labor matters. While state laws vary significantly, the majority of states do not protect political speech in the workplace. Finally, while Title VII and its state law analogs create litigation risk for employers, they are not an obvious source of protection for political speech.
Taking all this together, the more-likely-than-not outcome is that Acme Corporation can ask John to cease engaging in political speech in the workplace and, if necessary, take disciplinary action, including termination, if John does not comply. This conclusion is subject to an assessment of applicable state law to ensure that the relevant state does not impose unique protections, while also appreciating the risk of a Tannous-style discrimination claim, which is more likely in this context since Acme does not take a content-neutral approach to regulating political speech.
(2) Captive Audience Meetings: Political Speech by Employers
Hypothetical Scenario
Now that we’ve considered employee political speech that takes place in the workplace, let’s continue playing out our hypothetical scenario. To this point, Acme has asked John to refrain from engaging in political speech at work. He refused to comply, so Acme terminated his employment. Following this decision, Acme’s leadership became concerned about the messages John conveyed to his coworkers. In an effort to “set the record straight,” Acme organized a mandatory meeting for all employees at which several members of Acme leadership delivered a presentation explaining their perspective on the history and context of the Israel-Palestinian conflict.
Captive Audience Meetings
In addition to regulating their employees’ political speech, some employers take things a step further and engage in their own political speech by organizing mandatory workplace meetings to impart their political views on employees.[53] As we are about to discuss, both the NLRA and state laws inform the permissibility of these so-called “captive audience meetings.”
National Labor Relations Board
The National Labor Relations Board (“NLRB”) is the federal agency that enforces the National Labor Relations Act.[54] The NLRB’s general counsel, Attorney Jennifer Abruzzo, has recently taken the position that, despite a long history of the NLRB allowing them, certain captive audience meetings violate the NLRA.[55] As Abruzzo writes in a 2022 memo to NLRB staff:
In workplaces across America, employers routinely hold mandatory meetings in which employees are forced to listen to employer speech concerning the exercise of their statutory labor rights, especially during organizing campaigns. [T]hose meetings inherently involve an unlawful threat that employees will be disciplined or suffer other reprisals if they exercise their protected right not to listen to such speech. I believe that the NLRB case precedent, which has tolerated such meetings, is at odds with fundamental labor-law principles, our statutory language, and our congressional mandate.[56]
As already discussed, the NLRA concerns a specific type of protected speech in the workplace – accordingly, Abruzzo’s memo argues for prohibiting captive audience meetings regarding labor matters and union organizing, rather than political speech more generally.[57] The NLRB’s current position on captive audience meetings likely does not extend to political topics that are unrelated to labor matters.[58] Moreover, Abruzzo’s position goes against the NLRB’s long history of allowing such meetings, which raises the question, which is beyond our current scope, of whether the NLRB will continue to maintain this position in the future.[59]
State Law Considerations
A few states have taken things a step further than the NLRB and implemented their own protections regarding captive audience meetings.[60] For example, under New York law, it is unlawful for “employers to refuse to hire, discharge from employment, or otherwise discriminate against an individual in terms of compensation, promotion, and terms and conditions of employment based on an employee’s refusal to attend a mandatory workplace meeting regarding the employer’s religious or political views.”[61] The law does not prohibit casual political conversations and optional meetings, not does it apply to certain religious corporations.[62]
Writing for the Economic Policy Institute, Daniel Perez and Jennifer Sherer explain that an increasing number of states are considering similar laws to protect employees from captive audience meetings regarding politics and religion.[63] As is the case in New York, these “bills are designed to prohibit employers from threatening, disciplining, firing, or retaliating against workers who refuse to attend mandatory workplace meetings focused on communicating opinions on political or religious matters.”[64] However, as of April of 2024, only seven states have actually passed such protections.[65]
Title VII of the Civil Rights Act and State Civil Rights Laws
Outside of these seven states, an employer is not prohibited from requiring employees to attend meetings in furtherance of the employer’s political agenda.[66] However, these captive audience meetings may create litigation risks based on the same Title VII and state anti-discrimination law considerations discussed above. As Khorri Atkinson writes for Bloomberg: “[C]ompany statements or co-worker comments about the Middle East conflict could expose an employer to liability if a Jewish or Palestinian worker feels stigmatized.”[67]
If an employee believes that the content of a captive audience meeting is somehow discriminatory, then the employer may find itself facing a discrimination claim under Title VII or state civil rights laws.[68] Summarizing the guidance of multiple attorneys, Atkinson provides the following example: “[Political speech by an employer] could give rise to a claim of national origin discrimination under Title VII of the Civil Rights Act of 1964 or state anti-bias laws. Employers must ensure the workplace is free of any prejudice to Jewish or Palestinian employees based on their national origin or ethnicity.”[69]
Despite this cautionary guidance, federal and state anti-discrimination laws do not actually prohibit captive audience meetings regarding political topics.[70] Indeed, anti-discrimination laws tend not to apply to political speech at all.[71] While the anti-discrimination laws introduce litigation risk in this context, many employers are willing to take their chances and hold mandatory political meetings anyway.[72]
Revisiting Our Hypothetical
So, where does this leave Acme’s captive audience meeting? Since the meeting in question addresses management’s views on the Israeli-Palestinian conflict – a general political issue that’s unrelated to workplace conditions or labor rights – it likely falls outside the purview of the NLRB’s current approach to restricting captive audience meetings. Moreover, only a handful of states prohibit captive audience meetings related to political matters. Unless Acme is located in one of these states, there are no specific state laws preventing the company from organizing such meetings. The only remaining concern is the potential for a Title VII or state civil rights law claim by an employee who feels discriminated against, but many employers choose to hold such meetings despite the risk.
(3) Political Speech and Activities Outside of Work
Hypothetical Scenario
Let’s continue on with our hypothetical. After Acme separated John for engaging in political speech in the workplace, and then held a mandatory meeting advocating for its own political position with employees, a new development came to light. Acme learned that another employee, Jane Doe, who shared the same political leanings as the now-separated John Smith, had been posting extensive political content on her social media accounts, which Acme management found offensive. After reviewing Jane’s publicly-visible content, Acme decided to terminate her employment.
State Law Protections
When we consider an employer’s response to off-duty political expression, we primarily consider the same NLRA and civil rights law considerations discussed above, which do not need to be repeated in this section, along with state laws that specifically prohibit employers from taking negative employment action against employees for their political activities and other lawful off-duty conduct.[73]
Looking again to New York, state law dictates that an employer may not fire, discriminate, or refuse to hire someone based on that individual’s “political activities outside of working hours” or their “legal recreational activities.”[74] The law defines “political activities” quite narrowly as running for office, campaigning for a candidate, and fundraising for a candidate, party, or political group.[75] New York law also protects “recreational activities,” which include “any lawful, leisure-time activity” including “sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material.”[76]
Although the definition of “political activities” is fairly narrow, the definition of “recreational activities” is quite broad and protects a wide range of lawful off-duty conduct.[77] On its face, New York’s protection for “any lawful, leisure-time activity” could be interpreted to include something like an employee’s participation in lawful protests that advocate for positions with which the employer disagrees.[78] However, in a 2008 case involving an employee who was separated after picketing outside the workplace during non-work hours, the Western District of New York held that: “picketing falls outside of the definition of recreational activities” because the “Plaintiff did not engage in picketing for his leisure, but as a form of protest,” which is fundamentally different from “sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material.”[79] By contrast, after an employee was separated for engaging in a contentious political debate at a restaurant while off duty, a New York state appellate court rejected the defendant’s motion to dismiss.[80] The court held that, “having alleged that she was terminated as a result of a discussion during recreational activities outside of the workplace in which her political affiliations became an issue, [the plaintiff has] stated a cause of action for a violation of [New York’s off-duty conduct law].”[81]
While we can debate the specific extent to which New York law protects off-duty political conduct, the important thing for employers to remember is that this type of law is fairly uncommon.[82] While some states, like New York and Connecticut, protect political activities in various ways, many other states have no similar protections.[83] According to a recent Paul Hastings presentation delivered for the Association of Corporate Counsel, the majority of states do not have off-duty conduct laws.[84] As Whitman explains: “[The New York] prohibitions on employment discrimination based upon employee speech outside the workplace is uncommon. In most places, private employers may lawfully hire and retain only employees who share their political beliefs – and fire those who do not.”[85]
The states that do have applicable laws tend to provide employees with two related categories of protections: (1) privacy on social media and (2) protection for off-duty political activities and lawful off-duty conduct.[86] We consider both below.
Regarding social media, state protections typically allow employers to review employees’ public social media posts while prohibiting employers from requiring employees to provide usernames and passwords or share private content.[87] As Attorney Alonzo Martinez writes for Forbes: “[Under New York law,] employers are prohibited from requesting or compelling employees or job applicants to disclose their usernames, passwords, or other login information for personal social media accounts. Moreover, employers cannot demand individuals to access their personal accounts in the employer’s presence or reproduce any content from personal accounts.”[88] Martinez notes that about ten other states have passed similar laws.[89] Notably, these laws do not reach public social media posts that the employer and others can readily view and access.[90]
As to political freedom, state laws “are generally narrowly tailored, or construed by courts to be narrowly tailored, to electioneering or political work on behalf of candidates or political parties.”[91] Likewise, protections for lawful off-duty conduct don’t necessarily extend to political activities.[92] Garden explains the lay of the land for the Economic Policy Institute:
Several states protect employees from discrimination based on specific political activities such as voting or affiliating with a political party. . . . New York’s law is representative of many of these statutes in that it is limited to a specific set of activities—running for office, campaigning, or fundraising for a candidate, party, or political advocacy group—and New York courts have dismissed cases involving employees who were fired for other types of political expression.
A few other states, however, have statutory protections for “political activities” or “political opinions” more generally. California is one example; its labor code prohibits employers from threatening to fire employees in order to try to “coerce or influence” the employee into “adopting or following any particular course or line of political action or political activity.” Like many [other state statutes], this law has not resulted in many reported decisions interpreting its meaning, but a 1979 decision by the California Supreme Court concluded that, in addition to partisan political activity, the statute covered political views and civil rights advocacy, including the plaintiffs’ participation in the gay liberation movement. . . .
In addition to laws specifically protecting employees from retaliation based on their political activity, a handful of states including California, Colorado, and North Dakota have broader protections for employees’ out-of-work “lawful activities” that could encompass politics. (New York has a more limited protection for off-duty “recreational activities.”) But even in those states, employees’ real-world protection is limited because of a combination of statutory exceptions and narrow interpretations by courts. For example, courts have narrowed nearly out of existence California’s law protecting employees’ off-duty activities.[93]
The takeaway from all this is that employers should be sure to check the law of their own state before taking any employment action against a candidate or employee for their off-duty political conduct. When doing so, employers may find that the law is either silent or sufficiently narrow to allow the prohibition in question.[94]
Revisiting Our Hypothetical
Let’s now consider where this leaves Acme, which chose to separate Jane based on political social media posts that Acme found offensive. First of all, Acme did not mandate that Jane share private social media login information or content, so any applicable state laws protecting private social media content aren’t implicated. Even in states that have social media protections, employers are typically not restricted from viewing an employee’s public content.
In the minority of states in which laws protect employees from adverse employment actions based on their off-duty political and/or recreational activities, Jane’s termination could be challenged as a violation of state law. In many of these states, the law is narrowly written, or interpreted by courts, not to protect the type of political speech Jane engaged in. Of course, many states don’t have employment protections for lawful off-duty conduct at all. Thus, unless Jane works in an especially-protective state, Acme has the latitude to take disciplinary action in response to publicly-available political social media posts that it finds offensive.
Employers should just bear in mind the risk of a discrimination claim if their policies are not content-neutral and can be construed to discriminate based on protected characteristics. For the reasons already discussed, many employers are taking their chances despite this risk.
Conclusion
As many readers likely remember, a few years ago a bicyclist made national news after giving then-President Donald Trump’s motorcade the middle finger as it drove by her shortly after leaving the Trump National Golf Club in Sterling, Virginia.[95] After the photograph made its rounds in the news and went viral on various social media platforms, the bicyclist was separated by her Virginia employer.[96] Like many other states, Virginia had no law protecting employees from negative employment consequences for engaging in lawful off-duty conduct.[97]
While some states, unlike Virginia, offer fairly expansive protections for employee political speech, in most states Oliver Wendell Holmes’ 130-year-old sentiment still holds true today: employees may have a right to political expression, but they do not have a corresponding right to their job.
In light of global events and the resulting domestic protests, employers are increasingly scrutinizing and taking adverse employment actions based on the political activities of candidates and employees. While the First Amendment does not protect political speech from actions by private employers, employees may find protection in certain limited circumstances under other laws, such as state political activities laws, state off-duty conduct laws, the NLRA, Title VII of the Civil Rights Act, and state anti-discrimination laws.
While we can safely assume that sophisticated and well-advised employers, like Sullivan & Cromwell, have diligently assessed their legal obligations before choosing to screen out certain candidates and employees, we may also assume that those on the receiving end of adverse employment actions related to political speech will challenge these decisions on various grounds. It will be important to follow the resulting case law and legislation, and any potential expansions in workplace protections for political speech.
Endnotes
[1] Tatyana Monnay, Sullivan & Cromwell Plans Vigilant Hiring Checks After Protests, May 8, 2024, https://news.bloomberglaw.com/business-and-practice/sullivan-cromwell-plans-vigilant-hiring-checks-after-protests
[2] Vivia Chen, Sullivan & Cromwell's New Hiring Policy Is Polarizing and Worrisome, Substack, May 23, 2024, https://viviachen.substack.com/p/sullivan-and-cromwells-new-hiring
[3] John J. McAuliffe v. Mayor and Board of Aldermen of New Bedford, 155 Mass. 216 (1892); note also that while public-sector employees benefit from some additional protections, our focus in these pages is the current state of political speech as it relates to private sector employment.
[4] David Oberly, The Cost of Free Speech, Cincinnati Bar Association Report, Mar. 2018.
[5] Katie Navarra, How to Manage Political Discussions in the Workplace, SHRM, Feb. 21, 2024, https://www.shrm.org/topics-tools/news/employee-relations/political-discussions-workplace
[6] See Abby Warren, Manufacturers’ Manual to Political Speech in the Workplace, National Law Review, Nov. 1, 2023, https://natlawreview.com/article/manufacturers-manual-political-speech-workplace.
[7] See Allen Smith, Did You Know? Workers Can Be Fired for Their Political Affiliation and Activity, SHRM, Jan. 24, 2024, https://www.shrm.org/topics-tools/employment-law-compliance/fired-political-affiliation-activity.
[8] See Federal Employment Speech & the First Amendment, ACLU, https://www.acludc.org/en/know-your-rights/federal-employee-speech-first-amendment (last visited Jun. 1, 2024); Guidance Regarding Speech and Discrimination in the Workplace, California Department of Justice Office of the Attorney General, Nov. 3, 2023, Legal Alert OAG-2023-02.
[9] Katherine V.W. Stone & Harry Arthurs, Rethinking Workplace Regulation: Beyond the Standard Contract of Employment at 368 (Russell Sage Found. 2013)
[10] David Oberly, The Cost of Free Speech, Cincinnati Bar Association Report, Mar. 2018.
[11] David Oberly, The Cost of Free Speech, Cincinnati Bar Association Report, Mar. 2018.
[12] David Oberly, The Cost of Free Speech, Cincinnati Bar Association Report, Mar. 2018.
[13] David Oberly, The Cost of Free Speech, Cincinnati Bar Association Report, Mar. 2018; Katie Navarra, How to Manage Political Discussions in the Workplace, SHRM, Feb. 21, 2024, https://www.shrm.org/topics-tools/news/employee-relations/political-discussions-workplace (quoting Kara Govro).
[14] Abby Warren, Manufacturers’ Manual to Political Speech in the Workplace, National Law Review, Nov. 1, 2023, https://natlawreview.com/article/manufacturers-manual-political-speech-workplace; Tory I. Summey, Political Speech in the Workplace, Parker Poe Client Alert, Oct. 23, 2020, https://www.parkerpoe.com/news/2020/10/political-speech-in-the-workplace-2020-refresher; David Oberly, The Cost of Free Speech, Cincinnati Bar Association Report, Mar. 2018.
[15] Id.
[16] Abby Warren, Manufacturers’ Manual to Political Speech in the Workplace, National Law Review, Nov. 1, 2023, https://natlawreview.com/article/manufacturers-manual-political-speech-workplace.
[17] Charlotte Garden, Was it something I said? Legal protections for employee speech, Economic Policy Institute, May 5, 2022, https://www.epi.org/unequalpower/publications/free-speech-in-the-workplace/; Politics and Religion in the Workplace, LRCHRM, Oct. 3, 2023, https://lrshrm.shrm.org/blog/2023/10/politics-and-religion-workplace
[18] David Oberly, The Cost of Free Speech, Cincinnati Bar Association Report, Mar. 2018.
[19] Charlotte Garden, Was it something I said? Legal protections for employee speech, Economic Policy Institute, May 5, 2022, https://www.epi.org/unequalpower/publications/free-speech-in-the-workplace/
[20] Politics and Religion in the Workplace, LRCHRM, Oct. 3, 2023, https://lrshrm.shrm.org/blog/2023/10/politics-and-religion-workplace
[21] See Abby Warren, Manufacturers’ Manual to Political Speech in the Workplace, National Law Review, Nov. 1, 2023, https://natlawreview.com/article/manufacturers-manual-political-speech-workplace.
[22] See Calder McHugh Interview of Genevieve Lakier, How the Israel-Hamas War Is Redefining the Limits of Free Speech, Politico, Nov. 4, 2023, https://www.politico.com/news/magazine/2023/11/04/israel-hamas-cease-fire-free-speech-00125333.
[23] Abby Warren, Manufacturers’ Manual to Political Speech in the Workplace, National Law Review, Nov. 1, 2023, https://natlawreview.com/article/manufacturers-manual-political-speech-workplace.
[24] Abby Warren, Manufacturers’ Manual to Political Speech in the Workplace, National Law Review, Nov. 1, 2023, https://natlawreview.com/article/manufacturers-manual-political-speech-workplace.
[25] Melinda B. Kaufmann, Disciplining Employees for Offensive Private Speech: Connecticut Employers Must Show Workplace Disruption, JD Supra, Feb. 2, 2023, https://www.jdsupra.com/legalnews/disciplining-employees-for-offensive-4400040.
[26] See Melinda B. Kaufmann, Disciplining Employees for Offensive Private Speech: Connecticut Employers Must Show Workplace Disruption, JD Supra, Feb. 2, 2023, https://www.jdsupra.com/legalnews/disciplining-employees-for-offensive-4400040.
[27] See Melinda B. Kaufmann, Disciplining Employees for Offensive Private Speech: Connecticut Employers Must Show Workplace Disruption, JD Supra, Feb. 2, 2023, https://www.jdsupra.com/legalnews/disciplining-employees-for-offensive-4400040.
[28] See Calder McHugh Interview of Genevieve Lakier, How the Israel-Hamas War Is Redefining the Limits of Free Speech, Politico, Nov. 4, 2023, https://www.politico.com/news/magazine/2023/11/04/israel-hamas-cease-fire-free-speech-00125333.
[29] Calder McHugh Interview of Genevieve Lakier, How the Israel-Hamas War Is Redefining the Limits of Free Speech, Politico, Nov. 4, 2023, https://www.politico.com/news/magazine/2023/11/04/israel-hamas-cease-fire-free-speech-00125333.
[30] Politics in the Workplace: A State-by-State Guide to Help Employers Survive the Presidential Election, Ogletree Deakins, Oct. 27, 2016, https://ogletree.com/insights-resources/blog-posts/politics-in-the-workplace-a-state-by-state-guide-to-help-employers-survive-the-presidential-election.
[31] Calder McHugh Interview of Genevieve Lakier, How the Israel-Hamas War Is Redefining the Limits of Free Speech, Politico, Nov. 4, 2023, https://www.politico.com/news/magazine/2023/11/04/israel-hamas-cease-fire-free-speech-00125333.
[32] Politics in the Workplace: A State-by-State Guide to Help Employers Survive the Presidential Election, Ogletree Deakins, Oct. 27, 2016, https://ogletree.com/insights-resources/blog-posts/politics-in-the-workplace-a-state-by-state-guide-to-help-employers-survive-the-presidential-election.
[33] Title VII of the Civil Rights Act of 1964 (available at https://www.eeoc.gov/statutes/title-vii-civil-rights-act-1964)
[34] See, e.g., New York State Human Rights Law, SHRM, https://lrshrm.shrm.org/blog/2023/10/politics-and-religion-workplace,%20https://dhr.ny.gov/new-york-state-human-rights-law.
[35] See, e.g., Anne Carey, Political Ideology as a Limited Protected Class Under Federal Title VII Antidiscrimination Law, 26 J. L. & Pol'y 637 (2018).
[36] Golash v. Trinity Health Corp., No. 21-CV-12333, 2023 WL 2024462, at *9 (E.D. Mich. Feb. 15, 2023).
[37] See, for example, Allen Smith, Did You Know? Workers Can Be Fired for Their Political Affiliation and Activity, SHRM, Jan. 24, 2024, https://www.shrm.org/topics-tools/employment-law-compliance/fired-political-affiliation-activity; Abby Warren, Manufacturers’ Manual to Political Speech in the Workplace, National Law Review, Nov. 1, 2023, https://natlawreview.com/article/manufacturers-manual-political-speech-workplace; Tory I. Summey, Political Speech in the Workplace, Parker Poe Client Alert, Oct. 23, 2020, https://www.parkerpoe.com/news/2020/10/political-speech-in-the-workplace-2020-refresher.
[38] Elizabeth Whitman, Private Employers Often Can Restrict Political Speech at Work, Dec. 27, 2023, https://www.jdsupra.com/legalnews/private-employers-often-can-restrict-4894559.
[39] Khorri Atkinson, Employers Must Tread Lightly With Response to Israel-Hamas War, Bloomberg, Oct. 23, 2023, https://news.bloomberglaw.com/daily-labor-report/employers-must-tread-lightly-with-response-to-israel-hamas-war.
[40] Tannous v. Cabrini Univ., No. CV 23-1115, 2023 WL 6465842, at *5 (E.D. Pa. Oct. 4, 2023), on reconsideration in part, No. CV 23-1115, 2023 WL 8026634 (E.D. Pa. Nov. 20, 2023).
[41] Tannous v. Cabrini Univ., No. CV 23-1115, 2023 WL 6465842, at *5 (E.D. Pa. Oct. 4, 2023), on reconsideration in part, No. CV 23-1115, 2023 WL 8026634 (E.D. Pa. Nov. 20, 2023).
[42] Tannous v. Cabrini Univ., No. CV 23-1115, 2023 WL 6465842, at *5 (E.D. Pa. Oct. 4, 2023), on reconsideration in part, No. CV 23-1115, 2023 WL 8026634 (E.D. Pa. Nov. 20, 2023).
[43] Tannous v. Cabrini Univ., No. CV 23-1115, 2023 WL 6465842, at *5 (E.D. Pa. Oct. 4, 2023), on reconsideration in part, No. CV 23-1115, 2023 WL 8026634 (E.D. Pa. Nov. 20, 2023).
[44] See Religious Discrimination and Accommodation in the Federal Workplace, US Department of Labor, https://www.dol.gov/agencies/oasam/civil-rights-center/internal/policies/religious-discrimination-accommodation#:~:text=upon%20the%20agency.-,Religious%20Discrimination,or%20economic%20philosophies%20and%20mere%20personal%20preferences%20are%20not%20"religious"%20beliefs,-.%20It%20is%20important
[45] Religious Discrimination and Accommodation in the Federal Workplace, US Department of Labor, https://www.dol.gov/agencies/oasam/civil-rights-center/internal/policies/religious-discrimination-accommodation#:~:text=upon%20the%20agency.-,Religious%20Discrimination,or%20economic%20philosophies%20and%20mere%20personal%20preferences%20are%20not%20"religious"%20beliefs,-.%20It%20is%20important (emphasis added).
[46] See, e.g., Slater v. King Soopers, Inc., 809 F. Supp. 809, 810 (D. Colo. 1992) citing Bellamy v. Mason's Stores, Inc., 368 F.Supp. 1025, 1026 (E.D.Va.1973) aff'd 508 F.2d 504 (4th Cir.1974) (“the proclaimed racist and anti-semitic ideology of the organization to which [the plaintiff] belongs takes on . . . , a narrow, temporal and political character inconsistent with the meaning of ‘religion’”).
[47] See, e.g., Slater v. King Soopers, Inc., 809 F. Supp. 809, 810 (D. Colo. 1992) citing Bellamy v. Mason's Stores, Inc., 368 F.Supp. 1025, 1026 (E.D.Va.1973) aff'd 508 F.2d 504 (4th Cir.1974) (“the proclaimed racist and anti-semitic ideology of the organization to which [the plaintiff] belongs takes on . . . , a narrow, temporal and political character inconsistent with the meaning of ‘religion’”).
[48] See, e.g., Luke J. Farley, New Law Changes How Courts Award Attorneys’ Fees in Business Disputes, Conner, Gwyn Schenck e-Flash, 2011, https://cgspllc.com/new-law-changes-how-courts-award-attorneys-fees-in-business-disputes/
[49] See, e.g., Luke J. Farley, New Law Changes How Courts Award Attorneys’ Fees in Business Disputes, Conner, Gwyn Schenck e-Flash, 2011, https://cgspllc.com/new-law-changes-how-courts-award-attorneys-fees-in-business-disputes/
[50]Elizabeth Whitman, Private Employers Often Can Restrict Political Speech at Work, Dec. 27, 2023, https://www.jdsupra.com/legalnews/private-employers-often-can-restrict-4894559; Khorri Atkinson, Employers Must Tread Lightly With Response to Israel-Hamas War, Bloomberg, Oct. 23, 2023, https://news.bloomberglaw.com/daily-labor-report/employers-must-tread-lightly-with-response-to-israel-hamas-war; Abby Warren, Manufacturers’ Manual to Political Speech in the Workplace, National Law Review, Nov. 1, 2023, https://natlawreview.com/article/manufacturers-manual-political-speech-workplace; Tory I. Summey, Political Speech in the Workplace, Parker Poe Client Alert, Oct. 23, 2020, https://www.parkerpoe.com/news/2020/10/political-speech-in-the-workplace-2020-refresher.
[51] Tatyana Monnay, Sullivan & Cromwell Plans Vigilant Hiring Checks After Protests, May 8, 2024, https://news.bloomberglaw.com/business-and-practice/sullivan-cromwell-plans-vigilant-hiring-checks-after-protests.
[52] See, e.g., Tannous v. Cabrini Univ., No. CV 23-1115, 2023 WL 6465842, at *5 (E.D. Pa. Oct. 4, 2023), on reconsideration in part, No. CV 23-1115, 2023 WL 8026634 (E.D. Pa. Nov. 20, 2023).
[53] Daniel Perez and Jennifer Sherer, Tackling the Problem of ‘Captive Audience’ Meetings, Economic Policy Institute, Oct. 24, 2023, https://www.epi.org/blog/captive-audience-meetings.
[54] Introduction to the NLRB, National Labor Relations Board, https://www.nlrb.gov/about-nlrb/what-we-do/introduction-to-the-nlrb (last visited May 25, 2024).
[55] NLRB General Counsel Jennifer Abruzzo Issues Memo on Captive Audience and Other Mandatory Meetings, National Labor Relations Board, Apr. 7, 2022, https://www.nlrb.gov/news-outreach/news-story/nlrb-general-counsel-jennifer-abruzzo-issues-memo-on-captive-audience-and; Jennifer Abruzzo, Office of the General Counsel Memorandum GC 22-04, National Labor Relations Board, Apr. 7, 2022, available at https://www.nlrb.gov/news-outreach/news-story/nlrb-general-counsel-jennifer-abruzzo-issues-memo-on-captive-audience-and.
[56] Jennifer Abruzzo, Office of the General Counsel Memorandum GC 22-04, National Labor Relations Board, Apr. 7, 2022, https://www.nlrb.gov/news-outreach/news-story/nlrb-general-counsel-jennifer-abruzzo-issues-memo-on-captive-audience-and; see also Simone R.D. Francis, Sandi F. Dubin, and Zachary V. Zagger, New York Governor Signs Law Banning Mandatory ‘Captive Audience’ Meetings, Ogletree Deakins Insights & Resources, Sep. 16, 2023, https://ogletree.com/insights-resources/blog-posts/new-york-governor-signs-law-banning-mandatory-captive-audience-meetings (“For more than seventy years, the National Labor Relations Board (NLRB) has recognized an employer’s right under the National Labor Relations Act (NLRA) to require employees to attend meetings to discuss their right to refrain from joining or forming a union with some limitations on what employers may say, including limitations on threatening or coercive speech. However, the NLRB general counsel, in an April 2022 memorandum, took the position that such meetings violate the NLRA and stated an objective to overturn NLRB precedent protecting employer rights to hold such meetings.”).
[57] Jennifer Abruzzo, Office of the General Counsel Memorandum GC 22-04, National Labor Relations Board, Apr. 7, 2022, https://www.nlrb.gov/news-outreach/news-story/nlrb-general-counsel-jennifer-abruzzo-issues-memo-on-captive-audience-and.
[58] See Jennifer Abruzzo, Office of the General Counsel Memorandum GC 22-04, National Labor Relations Board, Apr. 7, 2022, https://www.nlrb.gov/news-outreach/news-story/nlrb-general-counsel-jennifer-abruzzo-issues-memo-on-captive-audience-and.
[59] See Jennifer Abruzzo, Office of the General Counsel Memorandum GC 22-04, National Labor Relations Board, Apr. 7, 2022, https://www.nlrb.gov/news-outreach/news-story/nlrb-general-counsel-jennifer-abruzzo-issues-memo-on-captive-audience-and; see also Simone R.D. Francis, Sandi F. Dubin, and Zachary V. Zagger, New York Governor Signs Law Banning Mandatory ‘Captive Audience’ Meetings, Ogletree Deakins Insights & Resources, Sep. 16, 2023, https://ogletree.com/insights-resources/blog-posts/new-york-governor-signs-law-banning-mandatory-captive-audience-meetings.
[60] Daniel Perez and Jennifer Sherer, Tackling the Problem of ‘Captive Audience’ Meetings, Economic Policy Institute, Oct. 24, 2023, https://www.epi.org/blog/captive-audience-meetings; Simone R.D. Francis, Sandi F. Dubin, and Zachary V. Zagger, New York Governor Signs Law Banning Mandatory ‘Captive Audience’ Meetings, Ogletree Deakins Insights & Resources, Sep. 16, 2023, https://ogletree.com/insights-resources/blog-posts/new-york-governor-signs-law-banning-mandatory-captive-audience-meetings.
[61] Simone R.D. Francis, Sandi F. Dubin, and Zachary V. Zagger, New York Governor Signs Law Banning Mandatory ‘Captive Audience’ Meetings, Ogletree Deakins Insights & Resources, Sep. 16, 2023, https://ogletree.com/insights-resources/blog-posts/new-york-governor-signs-law-banning-mandatory-captive-audience-meetings.
[62] Simone R.D. Francis, Sandi F. Dubin, and Zachary V. Zagger, New York Governor Signs Law Banning Mandatory ‘Captive Audience’ Meetings, Ogletree Deakins Insights & Resources, Sep. 16, 2023, https://ogletree.com/insights-resources/blog-posts/new-york-governor-signs-law-banning-mandatory-captive-audience-meetings.
[63]Daniel Perez and Jennifer Sherer, Tackling the Problem of ‘Captive Audience’ Meetings, Economic Policy Institute, Oct. 24, 2023, https://www.epi.org/blog/captive-audience-meetings.
[64]Daniel Perez and Jennifer Sherer, Tackling the Problem of ‘Captive Audience’ Meetings, Economic Policy Institute, Oct. 24, 2023, https://www.epi.org/blog/captive-audience-meetings.
[65] Daniel Perez and Jennifer Sherer, Will Illinois be Next to Tackle the Problem of ‘Captive Audience’ Meetings? Economic Policy Institute, Apr. 18, 2024, https://www.epi.org/blog/will-illinois-be-next-to-tackle-the-problem-of-captive-audience-meetings-rights-and-freedoms-of-22-7-million-workers-now-protected-in-seven-states (these states are Connecticut, Maine, Minnesota, New York, Oregon, New Jersey, and Washington).
[66]Daniel Perez and Jennifer Sherer, Tackling the Problem of ‘Captive Audience’ Meetings, Economic Policy Institute, Oct. 24, 2023, https://www.epi.org/blog/captive-audience-meetings.
[67] Khorri Atkinson, Employers Must Tread Lightly With Response to Israel-Hamas War, Bloomberg, Oct. 23, 2023, https://news.bloomberglaw.com/daily-labor-report/employers-must-tread-lightly-with-response-to-israel-hamas-war (internal citations omitted).
[68] See Khorri Atkinson, Employers Must Tread Lightly With Response to Israel-Hamas War, Bloomberg, Oct. 23, 2023, https://news.bloomberglaw.com/daily-labor-report/employers-must-tread-lightly-with-response-to-israel-hamas-war (internal citations omitted).
[69] Khorri Atkinson, Employers Must Tread Lightly With Response to Israel-Hamas War, Bloomberg, Oct. 23, 2023, https://news.bloomberglaw.com/daily-labor-report/employers-must-tread-lightly-with-response-to-israel-hamas-war (internal citations omitted).
[70] See, e.g., Title VII of the Civil Rights Act of 1964 (available at https://www.eeoc.gov/statutes/title-vii-civil-rights-act-1964)
[71] See Golash v. Trinity Health Corp., No. 21-CV-12333, 2023 WL 2024462, at *9 (E.D. Mich. Feb. 15, 2023).
[72] See Daniel Perez and Jennifer Sherer, Tackling the Problem of ‘Captive Audience’ Meetings, Economic Policy Institute, Oct. 24, 2023, https://www.epi.org/blog/captive-audience-meetings.
[73] Carson Sullivan, Sarah Besnoff, Lesley Marlin, Off Duty Conduct, Association of Corporate Counsel/Paul Hastings, Dec. 8, 2020, available https://www.acc.com/sites/default/files/2020-12/12.8.20%20Off%20Duty.pdf; Employee Off-Duty Behavior Laws by State, Brightmine, https://hrcenter.us.brightmine.com/fifty-state-charts/employee-off-duty-behavior-laws-by-state/22902/ (last visited May 27, 2024).
[74]Joseph Pace, Can Private Employees Be Fired for Out-of-Office Political Speech?, New York State Bar Association, Mar. 28, 2023, https://nysba.org/can-private-employees-be-fired-for-out-of-office-political-speech/
[75]Joseph Pace, Can Private Employees Be Fired for Out-of-Office Political Speech?, New York State Bar Association, Mar. 28, 2023, https://nysba.org/can-private-employees-be-fired-for-out-of-office-political-speech/
[76]Joseph Pace, Can Private Employees Be Fired for Out-of-Office Political Speech?, New York State Bar Association, Mar. 28, 2023, https://nysba.org/can-private-employees-be-fired-for-out-of-office-political-speech/
[77]Joseph Pace, Can Private Employees Be Fired for Out-of-Office Political Speech?, New York State Bar Association, Mar. 28, 2023, https://nysba.org/can-private-employees-be-fired-for-out-of-office-political-speech/
[78]Joseph Pace, Can Private Employees Be Fired for Out-of-Office Political Speech?, New York State Bar Association, Mar. 28, 2023, https://nysba.org/can-private-employees-be-fired-for-out-of-office-political-speech/
[79] Kolb v. Camilleri, 2008 WL 3049855, at *13 (W.D.N.Y. Aug. 1, 2008).
[80] Cavanaugh v. Doherty, 243 A.D.2d 92, 100, 675 N.Y.S.2d 143, 149 (1998).
[81] Cavanaugh v. Doherty, 243 A.D.2d 92, 100, 675 N.Y.S.2d 143, 149 (1998).
[82] Carson Sullivan, Sarah Besnoff, Lesley Marlin, Off Duty Conduct, Association of Corporate Counsel/Paul Hastings, Dec. 8, 2020, available https://www.acc.com/sites/default/files/2020-12/12.8.20%20Off%20Duty.pdf.
[83] Carson Sullivan, Sarah Besnoff, Lesley Marlin, Off Duty Conduct, Association of Corporate Counsel/Paul Hastings, Dec. 8, 2020, available https://www.acc.com/sites/default/files/2020-12/12.8.20%20Off%20Duty.pdf.
[84] Carson Sullivan, Sarah Besnoff, Lesley Marlin, Off Duty Conduct, Association of Corporate Counsel/Paul Hastings, Dec. 8, 2020, available https://www.acc.com/sites/default/files/2020-12/12.8.20%20Off%20Duty.pdf.
[85] Elizabeth Whitman, Private Employers Often Can Restrict Political Speech at Work, Dec. 27, 2023, https://www.jdsupra.com/legalnews/private-employers-often-can-restrict-4894559.
[86] Carson Sullivan, Sarah Besnoff, Lesley Marlin, Off Duty Conduct, Association of Corporate Counsel/Paul Hastings, Dec. 8, 2020, available https://www.acc.com/sites/default/files/2020-12/12.8.20%20Off%20Duty.pdf (there is also a third category of lawful off-duty drug and alcohol use, which is not relevant for current purposes).
[87] Carson Sullivan, Sarah Besnoff, Lesley Marlin, Off Duty Conduct, Association of Corporate Counsel/Paul Hastings, Dec. 8, 2020, available https://www.acc.com/sites/default/files/2020-12/12.8.20%20Off%20Duty.pdf.
[88] Alonzo Martinez, New York Restricts Employer Access To Employee Social Media Accounts, Forbes, Feb. 21, 2024, https://www.forbes.com/sites/alonzomartinez/2024/02/20/new-york-restricts-employer-access-to-employee-social-media-accounts/?sh=4c54b7fd4b5d.
[89] Alonzo Martinez, New York Restricts Employer Access To Employee Social Media Accounts, Forbes, Feb. 21, 2024, https://www.forbes.com/sites/alonzomartinez/2024/02/20/new-york-restricts-employer-access-to-employee-social-media-accounts/?sh=4c54b7fd4b5d.
[90] See Alonzo Martinez, New York Restricts Employer Access To Employee Social Media Accounts, Forbes, Feb. 21, 2024, https://www.forbes.com/sites/alonzomartinez/2024/02/20/new-york-restricts-employer-access-to-employee-social-media-accounts/?sh=4c54b7fd4b5d.
[91] Carson Sullivan, Sarah Besnoff, Lesley Marlin, Off Duty Conduct, Association of Corporate Counsel/Paul Hastings, Dec. 8, 2020, available https://www.acc.com/sites/default/files/2020-12/12.8.20%20Off%20Duty.pdf.
[92] See, e.g., Kolb v. Camilleri, 2008 WL 3049855, at *13 (W.D.N.Y. Aug. 1, 2008).
[93] Charlotte Garden, Was it something I said? Legal protections for employee speech, Economic Policy Institute, May 5, 2022, https://www.epi.org/unequalpower/publications/free-speech-in-the-workplace.
[94] Charlotte Garden, Was it something I said? Legal protections for employee speech, Economic Policy Institute, May 5, 2022, https://www.epi.org/unequalpower/publications/free-speech-in-the-workplace.
[95] Christine Hauser, Cyclist Lost Her Job After Raising Middle Finger at Trump’s Motorcade, New York Times, Nov. 6, 2027, https://www.nytimes.com/2017/11/06/us/middle-finger-trump.html.
[96] Christine Hauser, Cyclist Lost Her Job After Raising Middle Finger at Trump’s Motorcade, New York Times, Nov. 6, 2027, https://www.nytimes.com/2017/11/06/us/middle-finger-trump.html.
[97] Carson Sullivan, Sarah Besnoff, Lesley Marlin, Off Duty Conduct, Association of Corporate Counsel/Paul Hastings, Dec. 8, 2020, available https://www.acc.com/sites/default/files/2020-12/12.8.20%20Off%20Duty.pdf.