Article by Ilan Weiser and Nicole M. Vescova, Ellenoff Grossman & Schole LLP
Freedom of expression is firmly in the spotlight as the country wraps up what is arguably the most competitive election season in our history. It seems like Americans, perhaps more than ever before, say what they are feeling whenever they feel like it, regardless of the consequences.
Despite this cultural phenomenon, hospitality employers can actually restrict certain political speeches by their employees, as not all speeches in the context of employment are protected. In other words, “There is a time and a place” for certain speeches. With strict and carefully crafted company policies, your company can legally restrict your employees’ political speech during their work for you.
An employee’s right to participate in certain political speeches can extend to both their on-duty and off-duty behavior. This is especially important, not only because some of your employees are still quarantined in their homes, but also because there is now a significant amount of political speech going on online. Regardless of whether the speech is in the restaurant itself or not, it is only protected if there is a direct link between employment-related concerns and the specific issue that is the subject of the worker’s political speech. For example, your employees may discuss who they voted and why, touching on topics like the candidate who is more likely to expand federal law on responding to the family’s first coronavirus or expand unemployment insurance benefits. Such conversations are likely to be protected whether they take place in your restaurant’s kitchen or on Facebook.
Conversely, if there is no correlation between the political speech and the employee’s working conditions, an employer may take negative action against that employee for that political speech, particularly if it could be distracting, disruptive or conflict with the employer’s brand or business . For example, the National Labor Relations Board (“NLRB”) recently ruled that an employer legally dismissed an employee who testified before a local county council in support of police reform because the employee’s political advocacy was inconsistent with his or her terms Employment and thus he was not involved in concerted activities protected by the National Labor Relations Act.
The important thing is that your employees can’t say anything they want just because their speech is related to their job. Otherwise protected employee language can become “unprotected” and subject to the discipline of the employer if it contains “abusive, harassing or insulting statements”. General Motors LLC, 14-CA-197985, 369 NLRB No. 127 (2020). If employees in the kitchen of the restaurant are discussing their candidate’s choice and an employee threatens to injure an employee if they vote for the opposing candidate, it is most likely lawful to discipline that employee for making such a statement and possibly dismiss. The political aspect of this speech would not protect the inappropriate part of this speech.
These principles go beyond traditional verbal language. While employers can specifically prohibit employees from wearing clothing with political slogans (for example, “Make American Great Again”), employers cannot ban all types of logos or slogans entirely. Workers have the right to wear union badges, for example, under the National Labor Relations Act. In addition, federal law prohibits employers from discriminating against employees on the basis of protected characteristics such as race. Therefore, an employer who allows an employee to wear a mask with the logo of their favorite sports team but then prohibits a Black Lives Matter mask can face allegations of racial discrimination. In fact, Whole Foods employees recently made this claim after being disciplined for wearing BLM clothing in violation of the company’s dress code, which prohibits visible slogans, messages, logos, or advertisements.
Employers may also be subject to more favorable state law on language. While the NLRB did not identify a problem with dismissing an employee due to their political advocacy under federal labor law in the above example, the same advocacy may be protected under state law. Many states, including New York, prohibit employers from taking negative action against employees for their lawful off-duty conduct, including political activities, unless the conduct is materially contrary to the employer’s business interests.
Regardless of whether restaurants can lawfully ban certain political speeches, given the potential for public backlash, they should think twice about doing so. The Whole Foods example shows how a seemingly neutral company policy was changed to allow employees to openly engage in what would be a political speech.
The hard truth is, your employees are likely to be embroiled in current political issues because of their jobs (e.g., tip credit abolition, minimum wage, racial injustice, and COVID-19-related employee relief). It is imperative that you implement and consistently enforce neutral workplace policies while ensuring a sense of courtesy, respect, and sensitivity for the emotionally charged and outspoken society in which we live.
Ilan Weiser is a partner in the Labor & Employment group at Ellenoff Grossman & Schole LLP in New York City. Mr. Weiser exclusively represents companies of all sizes and industries in the best possible compliance with federal, state and local labor laws that regulate their business activities. Mr. Weiser’s main area of expertise is labor law litigation. He has vigorously defended hundreds of his clients in federal and state courts and various government agencies against claims of workplace discrimination and unfair wage practices. Mr. Weiser has particularly in-depth knowledge of wage and hourly law and regularly defends and advises his clients in class and collective actions with regard to claims to unpaid wages.
Nicole M. Vescova is an Associate in the Labor & Employment group at Ellenoff Grossman & Schole LLP in New York City. Ms. Vescova represents and advises companies in all industries on a wide variety of labor and employment issues, including fair wage practice, employee grading, termination and vacation. Ms. Vescova drafts employment policies and agreements such as employee handbooks, separation agreements and restrictive pact agreements. She also defends employers against employee claims before federal and regional courts as well as before administrative authorities such as the EEOC and the NLRB.
Ilan Weiser ([email protected]) and Nicole Vescova ([email protected]) can be reached by phone at 212-370-1300.
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