Resource Library

Free Speech in the Workplace During Election Years

 

By Jessica E. Schwie and Josh Devaney, Attorneys, Kennedy & Graven, Chartered

Date: June 2022

Politican talks with woman at her home
Along with traditional leafletting, posters, stump speeches and signs; social media, text messages and e-mails (including emojis, “liking”, etc.) may be employees’ protected political speech.

Election season is upon us, and Americans across the country will be honoring the tradition of avoiding political discussions with certain family members. For public employers, officials and employees, however, politics in the workplace are sometimes unavoidable. Public employers face additional challenges when employees become candidates or support specific candidates.

Although private employers may fire employees for certain speech (examples and critiques of the practice abound), public employers cannot so easily. Public employers must ensure that their actions do not infringe on their employees’ First Amendment rights, including rights of association and speech.

Public employees have constitutional rights to engage in information sharing, questioning, providing answers and to associate with one candidate.1 That right, however, is not without limitations.

Rather, that right is balanced against the interests of the public and the public employer in the fair, impartial, effective and efficient provision of services, particularly in the law enforcement context. As a result, public employers must utilize a balancing test to determine whether particular political activity by a public employee may be discouraged by the employer through policy or discipline.2

Determining Conduct

When setting policy and giving guidance, the first question to be addressed is whether the activity at issue is “speech.” This seemingly simple question has become increasingly more complex as social media plays a larger role in Americans’ daily lives.

In Bland v. Roberts, a deputy who “liked” the page of an unsuccessful candidate for sheriff was terminated after the election.3 The court ruled that liking a page was speech because it conveyed support or appreciation.

This ruling makes it clear that speech includes a broad category of conduct. As a result, social media, text messages and e-mails (including emojis, “liking”, etc.) may be protected speech along with traditional leafletting, posters, stump speeches and signs.

The next question to be addressed is where did the speech occur, i.e., the time, place and manner of the speech.4 As a general rule, employee speech may be limited during business hours, but employees retain the right to discuss matters of public concern during business hours so long as it does not interfere with the performance of duties by themselves and others and does not run afoul of the restrictions in Minnesota Statutes, Chapter 211 B.5

For example, employees may question policies that are a matter of general political, social or other concern to the community, such as whether the sheriff’s office should purchase and use body cameras during a meeting to discuss the same. However, employees may be subject to discipline if they prepare and circulate a survey about purchasing and using body cams after meetings and studies have already been conducted instead of completing assigned tasks.6

Outside of work, employees can speak about most topics to the same extent as private citizens, but they cannot behave in a way that breaches the public’s trust in the individual’s ability to perform fair, impartial, effective and efficient services while at work.7 This is particularly true for persons charged with saving lives and upholding the law.

Those in the sheriff’s office and the county attorney’s office are held to a higher standard at all times. Unbecoming speech that breaches the public trust is typically held to relate to the person’s ability to perform his or her duties; it is thus not private speech, and may serve as a basis for disciplinary action no matter when it occurs.8

Finally, in light of election season, comments by opponents concerning daily operations and plans are fair game, as long as the commentary is within the bounds of typical campaign activities and is not damaging to and disruptive of the discipline and harmony of the office.

A true edge case can be found in Morgan v. Robinson, where a deputy running against an incumbent sheriff criticized morale in the office and other issues, both in newspaper publications and during door knocking.9 After the sheriff was re-elected, he terminated the deputy, citing the comments on the campaign trail.

Initially, a panel of the court found the termination was unlawful. On rehearing en banc, the court found in favor of the sheriff, stating that prior case law did not clearly establish that his actions violated constitutional rights. However, the court was extremely divided in arriving at its decision, indicating that this is all of the slack the court is willing to give.

The key factors of the case weighing against the sheriff were that: 1) all of the speech occurred during accepted campaign forums; and 2) the content of the statements demonstrated their importance to the community.

However, in carving out a slight exception only where it comes to policing, the court relied on substantial evidence that the sheriff reasonably believed that the speech disrupted office discipline and harmony and was “detrimental to the close working relationships and personal loyalties necessary for an effective and trusted local policing operation.”

On the other hand, false statements on the campaign trail and engaging in mudslinging that causes disruption in the office are actionable.10

Seek Advice Before Acting

Before taking any action, public employers should discuss the situation with human resources, the county attorney or labor counsel.


Political candidate sign in front yard of a homeDos and Don’ts of Election-year Speech

During election season approaches, keep the following in mind.

Do:

  • Discuss with human resources, administration and/or the county attorney’s office policies that address conduct on social media and political activity.
  • Schedule training or discussions to address these issues openly. Although some may want to speak, others may desire to discuss their right not to hear others’ views. Open discussions may help those in the workplace to find the right balance about how much is too much political activity in the workplace.
  • Allow employees to participate in the election season as private citizens, but enforce rules that are aimed at ensuring that employees are effectively and efficiently performing their assigned duties.

Don’t:

  • Fire, demote, transfer or take any other adverse action against an employee simply because the individual ran for office. Although people may hold different philosophical approaches, unsuccessful candidates should be able to continue to perform their assigned duties effectively.
  • Fire, demote, transfer or take any adverse actions against an employee because the individual supported another candidate. Differences should be put aside to ensure the continuation of quality governmental services.

1 Pickering v. Board of Educ., 391 U.S. 563, 573 (1968).

2 This article does not address the right of a public employer to place an employee running for office on leave per Martin v. Itasca County, 448 N.W.2d 368 (Minn. 1989) or the restrictions on government employees and officials in Minn. Stat. Ch. 211 B.

3 Id, 730 F.3d 368, 385 (4th Cir. 2013), as amended (Sept. 23, 2013).

4 Connick v. Myers, 461 U.S. 138, 146 (1983).

5 Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).

6 See e.g. Connick, 416U.S. at 148; Eng v. Cooley, 552 F.3d 1062, 1071 (9th Cir. 2009).

7 Buker v. Howard Cty., Md., 138 S. Ct. 171, 199 L. Ed. 2d 42 (2017)(ignoring whether Facebook posts were conducted on-duty and instead focusing on their content).

8 See e.g. Hemminghaus v. Missouri, 456 F.3d 1100 (8th Cir. 2014).

9 Id., 920 F.3d 521 (8th Cir. 2019).

10 See Nord v. Walsh Cty., 757 F.3d 734, 737-38 (8th Cir. 2014)(upholding termination of deputy-challenger who falsely stated during the campaign that the sheriff was in poor health and should not be running for office).

The information contained in this document is intended for general information purposes only and does not constitute legal or coverage advice on any specific matter.