What Rights Do I Have if This Causes Me a Problem at Work?
Employees of Private Businesses:
What about the First Amendment? Can’t I say whatever I want?
- Yes, you can say anything you want under the First Amendment, but your boss is allowed to fire you or take action against you at work for it – Private Employees have no First Amendment protection against being fired or demoted under Federal Law.
Do I have Any Legal Protection at Work at All?
- Yes, there is a New York State law that gives you some protection, Labor Law § 201-d. It says that no employer can discriminate in hiring, firing or conditions of employment against anyone for political activity.
What Political Activity is Protected?
- running for public office,
- campaigning for a candidate for public office, or
- participating in fund-raising activities for a candidate, political party or political advocacy group.
Example: A records clerk for the Nassau County legislature was fired from his job less than four months after an election in which Republicans took control of the Legislature, and claimed that he had gone door to door for Democratic candidates, volunteered at phone banks, and distributing campaign literature. The Legislature argued that it had let him go due to budget cuts, the fired clerk argued that the need for budget cuts arose only because the Legislature had hired three new employees—all Republican. His claim was valid Fishman v. County of Nassau, 2013 U.S. Dist. LEXIS 47071, 2013 WL 1339466 (E.D.N.Y. Apr. 1, 2013),
- Absolutely not. Remember also that there will be generally little or no protection for any political activities conducted during work hours, on the employer’s premises, or using the employer’s equipment or materials; It gives you protection for what you do on your own time. Whether a simple one time statement of political affiliation at work is protected is not really clear from the law, and can probably be argued either way, but the more extensive the speech is at work, the better chance the boss will win. If the employee is wearing a campaign button for a particular candidate and the employer says to take it off, they should do it and put it back on when they leave work.
Remember – The General Rule is That There is No Free Speech Right When You Work for a Private (non-government) Employer on His Time. The law we’re talking about here provides some protection, but that protection is limited; it is by no means absolute.
Are Government Employees (Federal, State, City, County, etc.) Political Speech Rights Protected?
- Yes – They have much stronger federal law protection under the First Amendment. The First Amendment generally prohibits government officials from dismissing or disciplining an employee because of the employee’s engagement in political activity. One recent Supreme Court case, Heffernan v. City of Paterson, 136 S. Ct. 1412 (U.S. 2016) protected a police officer who took a campaign sign for someone challenging the mayor to his disabled mother on his own time. The police chief, who had been appointed by the current mayor, demoted him. Even though he wasn’t campaigning himself and had no interest in the election, he was just doing a favor for his mother, he was protected, because to hold otherwise would frighten the other employees from exercising their political speech rights – what courts call a “chilling effect.”
But here are a few things to keep in mind:
- The speech always has to be about a matter of public concern, and if it is, the employee’s right, as a citizen, to engage in the speech has to be weighed by the Court against the interests of the State, as an employer, in promoting the efficiency of the public services it performs, Pickering v. Bd. of Educ., 391 U.S. 563 (U.S. 1968).
- This can also cover rights of political association; and
- In order to be protected, it must generally be on the employee’s own time, without using the employer’s premises or materials; and
- Anything a public employee says in the course of his/her employment will not be protected. Example: If an employee of the Mayor’s Office makes any statement on the news in his/her official capacity, the Mayor can fire or discipline them for anything they say or don’t say, whether it’s true or not. Remember also that policy making and confidential employees probably can be dismissed just based on their political affiliation where the employer can show that party affiliation is an appropriate requirement for the effective performance of the public office involved, Vezzetti v. Pellegrini, 22 F.3d 483, 1994 (2d Cir. N.Y. 1994).
If you have strong political views which are very different from those of your employer, you should probably avoid any confrontation and get legal advice first as to how to best protect yourself. Call the Law Offices of William Cafaro at 212-583-7400 before you take any action like this.