Labor Law, Employment Law and Political Speech in the Workplace

The recent death of Charlie Kirk has sparked strong public reactions and political division, including disparaging remarks by employees on social media. Some employers have reportedly responded by terminating or disciplining employees who spoke critically of Kirk in the aftermath of his murder. Public commentary has largely focused on the First Amendment, with many noting that it restricts government—but not private—employers. That is correct as far as it goes. But employers should not assume they have unfettered discretion to regulate or punish political expression. Both the National Labor Relations Act (NLRA) and various state and local laws may also limit employers’ responses to employee political speech.

The NLRA and Political Speech

The NLRA protects employees’ rights to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” This protection is not limited to discussions of wages, hours and other terms and conditions of employment in the narrow sense. Nor is it limited to unionized workforces.  The National Labor Relations Board (NLRB) has long recognized that employee speech about political and social issues can qualify as protected activity if there is a “direct nexus” between the political issue and employees’ terms and conditions of employment.

For example:

• Policy issues affecting the workplace. Employees advocating for an increase in the minimum wage or opposing immigration policies that affect available labor pools may be protected, even if their comments occur outside the workplace or are expressed in political terms.
• Public figures tied to workplace laws. Commentary about a political figure could fall within NLRA protection if employees tie their criticism to how that individual’s policies, statements, or influence affect the workplace or the employer’s treatment of employees.
• Social media posts. Online discussions among employees about political issues, even in heated or offensive terms, may still be protected if they involve group concerns about working conditions or policies.

Not all political speech enjoys protection. Speech that is purely individual or unrelated to workplace concerns generally falls outside the NLRA’s protections. Similarly, speech that crosses the line into threats, discriminatory harassment or malicious falsehoods may lose protection, even if it began in the context of concerted activity. The NLRB has wrestled with this boundary for years, sometimes expanding protection for intemperate speech in the name of safeguarding concerted activity and sometimes narrowing it to protect workplace civility.

The upshot is that whether a particular statement is protected under the NLRA often depends heavily on context. Was the employee acting with or on behalf of other employees? Was the speech tied to terms and conditions of employment? Did it occur in a forum where employees commonly discuss work issues, such as group texts or social media?  If the answer to each of these questions is, “yes,” a political statement may very well implicate the NLRA.

State and Local Protections

Even when the NLRA does not apply, employers may be constrained by state or local law. A growing number of jurisdictions protect political activity or affiliation. 

For example:

• California prohibits employers from adopting rules or policies that prevent employees from engaging in politics or controlling their political activity.
• New York protects employees’ lawful off-duty political activities, including running for office, campaigning, or expressing political opinions.
• Colorado prohibits employers from retaliating against employees for engaging in politics or affiliating with a political party.
• The District of Columbia includes “political affiliation” as a protected category under the D.C. Human Rights Act.
• Seattle, Wash. prohibits discrimination based on political ideology.

State and local protections vary widely: some apply only to off-duty activity, while others extend into the workplace. Employers operating in multiple jurisdictions should be attentive to these differences.

Practical Implications

The takeaway for employers is that political speech in the workplace cannot be addressed simply by pointing to the inapplicability of the First Amendment. Federal labor law and a patchwork of state and local protections mean that discipline for political speech can create legal risk, especially when the speech overlaps with workplace concerns.

Before responding to employee commentary—whether about Charlie Kirk or any other political figure—employers should carefully assess whether the speech is protected concerted activity under the NLRA or protected by state or local law. Policies on workplace conduct and social media should be written and enforced consistently, in a way that maintains order without chilling employees’ rights.

The Bottom Line

While employers may be frustrated by divisive political commentary, particularly in a politically charged moment, the law places limits on how far they can go in responding. A rushed disciplinary decision can create exposure before the NLRB or under state law. The safest course is to evaluate each case in its context and consult labor counsel before taking action.

Contact John Duke or any member of the Phelps labor and employment team with questions or for advice and guidance.