With election day quickly approaching and some voters opting to engage in the early voting process, employers should be mindful about employees’ discussions and activities regarding politics in the workplace. Political discussions (and more
often than not political disagreements) in the workplace have become especially challenging this year based in large part on the fact that the upcoming elections are set against the backdrop of polarizing national issues such as the COVID-19 pandemic, the economy, and social justice and unrest.

According to the U.S. Supreme Court, government (public) employees do not surrender their First Amendment Rights at their employer’s doorstep, however the protection of an employee’s right to free speech is not absolute. The First Amendment will not protect public employees where the employer’s interest in providing efficient and effective services to the public outweighs the employee’s free speech interests.

Additionally, employers should be aware that there is an important distinction between taking an adverse employment action against an employee because of his or her political beliefs or affiliations, and disciplining employees whose conduct is deemed to be harassing, offensive, or threatening, or which espouses a discriminatory animus, even if it may be motivated by the employee’s political views. In other words, employers cannot discipline an employee for supporting a particular candidate, political party, or movement, but may discipline employees for engaging in harassing, offensive, and/or threatening conduct that undermines the public’s trust or confidence or reflects an employee’s inability to serve all individuals in the community.

Most public employees are generally required to adhere to a standard of conduct prohibiting both on- and off-duty conduct, particularly, offensive social media posts, that impair the performance of their official duties or the efficiency of their employer’s mission. Employers may also rely on their respective Anti- Harassment and Social Media policies to
prohibit such conduct, provided that the policies are enforced in a neutral and consistent manner.

Finally, aside from the First Amendment considerations, public employers in Massachusetts should be aware that the conflict of interest law, M.G.L. c. 268A, generally prohibits employees from engaging in certain election-related activities while on duty. As a reminder, appointed public employees may not engage in the following activities (exceptions exist for elected officials and policy makers):

  • Sending campaign-related materials using office computers, fax machines, or an official email account to send campaign emails;
  • Using office supplies or materials to create or distribute campaign materials;
  • Directing other public employees or staff (while on duty) to distribute campaign materials, or conduct campaign polls or research;
  • Wearing a uniform while performing campaign activities or supporting a particular candidate or ballot initiative;
  • Using a public title while campaigning, or using a public title to support or oppose a candidate or ballot initiative;
  • Holding campaign-related events in public office spaces;
  • Soliciting, either directly or indirectly, political contributions of any kind.

If you have any questions or concerns regarding political speech or activity by public employees during this Election Season (or beyond), please contact your NMP Attorney.