Article contributed by Ilan Weiser and Nicole M. Vescova, Ellenoff Grossman & Schole LLP
Freedom of speech is firmly in the spotlight as the country wraps up what has arguably been the most hotly-contested election season in our history. It seems as if Americans, perhaps more than ever before, are saying whatever they feel, whenever they feel like it, regardless of the consequences.
Despite this cultural phenomenon, hospitality employers can in fact limit certain political speech of their employees because not all speech is protected in the context of employment. In other words, “there’s a time and a place” for certain speech, and with strong and carefully-drafted company policies, your business may legally limit your employees’ political speech while they are working for you.
An employee’s right to engage in certain political speech may extend to both their on-duty and off-duty conduct. This is particularly important, not only because some of your employees are still quarantining in their homes, but rather because a significant amount of political speech now takes place online. Regardless of whether or not the speech occurs at the restaurant itself, it is protected only if there is a direct nexus between employment-related concerns and the specific issue that is the subject of the employee’s political speech. For example, your employees may be discussing who they voted for and why, touching on subjects such as which candidate is more likely to expand the protections of the Federal Families First Coronavirus Response Act, or extend unemployment insurance benefits. Such conversations would likely be protected whether they occurred in your restaurant’s kitchen or on Facebook.
Conversely, where no nexus between the political speech and the employee’s working conditions exists, an employer may be able to take adverse action against that employee for that political speech, particularly where it might be distracting or disruptive, or conflicts with the employer’s brand or business. For example, the National Labor Relations Board (“NLRB”) recently held that an employer legally terminated an employee who provided testimony before a local county council supporting police reform, because the employee’s political advocacy had no relation to the terms of his employment and thus he was not engaged in concerted activity protected under the National Labor Relations Act.
Importantly, your employees cannot say anything they wish simply because their speech is related to their employment. Employee speech that is otherwise protected may become “unprotected” and subject to employer-discipline if it includes “abusive, harassing, or offensive statements.” General Motors LLC, 14-CA-197985, 369 NLRB No. 127 (2020). If employees are discussing their choice of candidate in the restaurant’s kitchen, and one employee threatens to injure a co-worker if they voted for the opposing candidate, it would most likely be lawful to discipline and potentially terminate that employee for such statement. The political aspect of that speech would not protect the inappropriate portion of that speech.
These principles extend beyond just traditional verbal speech. While employers can specifically prohibit employees from wearing clothing with political slogans (e.g., “Make American Great Again”), employers cannot completely prohibit all types of logos or slogans. Employees have a right under the National Labor Relations Act to wear union insignia, for example. Further, federal law prohibits employers from discriminating against employees based on protected characteristics, such as race. Therefore, an employer that permits an employee to wear a mask with the logo of their favorite sports team, but then prohibits a Black Lives Matter mask, may face allegations of racial discrimination. In fact, Whole Foods employees recently made this allegation after they were disciplined for wearing BLM clothing in violation of the company’s dress code, which prohibits visible slogans, messages, logos or advertising.
Employers may also be subject to more employee-favorable state law related to speech. Thus, while in the example above the NLRB found no issue with the business terminating an employee based on their political advocacy pursuant to federal labor law, that same advocacy may be protected under state law. Many states, including New York, prohibit employers from taking adverse action against employees due to their lawful off-duty conduct, including political activities, unless the conduct materially conflicts with the employer’s business interests.
Regardless of whether restaurants can lawfully prohibit certain political speech, they are urged to think twice about whether they should, given the potential for public backlash. The Whole Foods example illustrates how a seemingly neutral company policy was changed to allow employees to openly engage in what is arguably political speech.
The hard truth is that your employees are likely to be caught up in today’s trending political issues because of the work they do (e.g., abolishment of the tip credit, minimum wage, racial injustice and COVID-19-related employee relief). It is imperative you implement neutral workplace policies and enforce them consistently, all while ensuring a sense of civility, respect and sensitivity to the emotionally-charged and outspoken society in which we live.
Ilan Weiser is a Partner in the Labor & Employment practice group at Ellenoff Grossman & Schole LLP in New York City. Mr. Weiser exclusively represents businesses of all sizes and sectors on how best to comply with the federal, state and local labor laws that govern their operations. Mr. Weiser’s principal area of expertise is employment law litigation and has vigorously defended hundreds of his clients in federal and state court and before various governmental agencies against claims of employment discrimination and unfair pay practices. Mr. Weiser has particularly in-depth knowledge of wage and hour law and regularly defends and counsels his clients in class and collective lawsuits concerning claims for unpaid wages.
Nicole M. Vescova is an Associate in the Labor & Employment practice group at Ellenoff Grossman & Schole LLP in New York City. Ms. Vescova represents and advises businesses across all industries in a variety of labor and employment matters, including proper pay practice, employee classification, termination, and leave. Ms. Vescova drafts employment policies and agreements such as employee handbooks, separation agreements and restrictive covenant agreements. She also defends employers against claims brought by employees in federal and state court, and before administrative agencies, such as the EEOC and NLRB.