Want To Speak Out About Politics at Work? Here Are 3 Things You Need to Know.

Sam Wheeler and Leo Gertner

These tips are not foolproof ways to protect your job, but they provide some cover in the face of the risks and challenges ahead. (Photo by Erik McGregor/Pacific Press/LightRocket via Getty Images)

In the past sev­er­al months, there’s been a not­ed uptick in polit­i­cal speech at work. That speech has often made nation­al news, from Sal­ly Yates’ dis­missal as inter­im attor­ney gen­er­al to IBM work­ers orga­niz­ing against their employer’s sup­port of Don­ald Trump. In the ear­ly days of the Trump admin­is­tra­tion, the New York Taxi Work­ers Alliance’s strike against the Mus­lim ban at John F. Kennedy Inter­na­tion­al Air­port stood out as an impres­sive act of resis­tance and sol­i­dar­i­ty. And even before Trump’s elec­tion, Col­in Kaeper­nick, then a quar­ter­back for the San Fran­cis­co 49ers, sparked a nation­al dis­cus­sion when he refused to stand dur­ing the nation­al anthem in protest of racism against African-Amer­i­cans and oth­er peo­ple of color.

Protests against the admin­is­tra­tion are build­ing quick­ly, with diverse groups orga­niz­ing mass protests against the administration’s poli­cies. This month, on May Day — oth­er­wise known as Inter­na­tion­al Work­ers’ Day — thou­sands of work­ers across the coun­try took to the streets to chal­lenge Trump’s dra­con­ian and uncon­sti­tu­tion­al immi­gra­tion poli­cies. In all like­li­hood, polit­i­cal activ­i­ty at work will only increase through­out the Trump admin­is­tra­tion, all of which begs the ques­tion: How pro­tect­ed are work­ers who talk pol­i­tics on the job?

As it turns out, not very, at least legal­ly. Though more than 40 per­cent of par­tic­i­pants in a 2014 YouGov poll believed that the First Amend­ment pro­tect­ed them from retal­i­a­tion for their work­place polit­i­cal speech, the truth is that work­ers have, at best, a patch­work of rights to talk pol­i­tics at work.

Most pri­vate sec­tor work­ers have no Con­sti­tu­tion­al pro­tec­tions to engage in polit­i­cal speech at work. How­ev­er, they do have rights as work­ers. (Gov­ern­ment work­ers have some lim­it­ed First Amend­ment rights because the First Amend­ment applies to gov­ern­ment action, but those rights aren’t always con­sis­tent­ly defined.)

Though it can be dif­fi­cult to nav­i­gate the maze of laws that reg­u­lates employ­ment, there are some sim­ple things to keep in mind that can help pri­vate sec­tor employ­ees ensure they have max­i­mum pro­tec­tion at work. These tips are not fool­proof ways to pro­tect your job, but they pro­vide some cov­er in the face of the risks and chal­lenges ahead. Of course, you’re safest keep­ing your protests out­side of work, but build­ing the resis­tance against Trump will require shop floor lead­ers to be vocal and vis­i­ble. While speak­ing out at work is inher­ent­ly risky, the rewards mea­sured in col­lec­tive strength and tan­gi­ble gains can­not be overestimated.

Step 1: Bring a buddy

The Nation­al Labor Rela­tions Act (NLRA), the main law gov­ern­ing rela­tions between work­ers and employ­ers in the pri­vate sec­tor, is unique: It most­ly pro­tects groups, not indi­vid­u­als. This means that when­ev­er you stand up to improve the con­di­tions at your work­place with at least one oth­er work­er, you are engag­ing in pro­tect­ed con­cert­ed activ­i­ty” under the NLRA, and you can’t law­ful­ly be fired or dis­ci­plined for that activ­i­ty. Sol­i­dar­i­ty at work is pro­tect­ed under fed­er­al law. This pro­tec­tion applies to reg­u­lar work­place com­plaints and griev­ances — for instance, join­ing with your cowork­ers to form a union or ask for a wage increase — but can also apply to polit­i­cal activity.

Usu­al­ly, even talk­ing to cowork­ers about your prob­lems at work is pro­tect­ed con­cert­ed activ­i­ty.” The Nation­al Labor Rela­tions Board (NLRB) recent­ly broad­ened the mean­ing of the term in a 2014 case. In that case, the NLRB held that a work­er who talked to her cowork­ers about serv­ing as wit­ness­es in her indi­vid­ual sex­u­al harass­ment com­plaint was pro­tect­ed under the NLRA because she was enlist­ing cowork­ers in her aid. This sug­gests that a work­er can invoke the pro­tec­tions of the NLRA just by talk­ing with coworkers.

It’s always a good idea to act with at least one oth­er cowork­er. The best defense is build­ing strong ties with cowork­ers and the com­mu­ni­ty. The more the boss fears push­back, the less like­ly he is to retal­i­ate. At the very least, make sure to talk to a cowork­er before engag­ing in any action at work, polit­i­cal or oth­er­wise, to bring that action under the NLRA’s pro­tec­tion. But keep in mind that not all polit­i­cal protest is pro­tect­ed — as Step 2 explains.

Step 2: If you’re talk­ing or protest­ing pol­i­tics, find ways to tie your protest to issues your employ­er can control

If you decide to engage in polit­i­cal activ­i­ty at work, the most impor­tant action you can take to pro­tect your­self and your cowork­ers is to tie your speech or protest to an employ­ment relat­ed con­cern.” With some lim­it­ed excep­tions, the NLRA pro­tects you from dis­ci­pline for dis­cussing any­thing hav­ing to do with your pay, occu­pa­tion­al safe­ty, the poli­cies at your job, and oth­er terms and con­di­tions of employ­ment with cowork­ers and third par­ties, whether the news media or a gov­ern­ment agency. In a famous labor law case from 1962, NLRB v. Wash­ing­ton Alu­minum, the Supreme Court found that labor law pro­tect­ed a group of work­ers who spon­ta­neous­ly walked off the job because the shop was too cold to work, though there was a rule against leav­ing work with­out the supervisor’s per­mis­sion and the employ­ees didn’t plan or know they were engag­ing in a work­place action.

Prob­lems that your employ­er can’t affect or con­trol are not employ­ment relat­ed. For exam­ple, in 2006, hun­dreds of work­ers were ter­mi­nat­ed for walk­ing off the job to join mas­sive protests against anti-immi­grant leg­is­la­tion pro­posed in Con­gress. In response to the ter­mi­na­tions, the NLRB came up with some guide­lines for polit­i­cal activ­i­ty. While the protests were found to have been done for mutu­al aid and pro­tec­tion” — work­ers stand­ing togeth­er in sol­i­dar­i­ty — walk­ing off the job against employ­er rules was unpro­tect­ed, since the employ­ers could not con­trol immi­gra­tion policy.

Some­times an employ­er does have pow­er over a gov­ern­ment pol­i­cy — for instance, if the employ­er is active­ly involved in lob­by­ing over that pol­i­cy, like in a recent case where taxi dri­vers protest­ed against their employ­er, a Las Vegas cab com­pa­ny, for lob­by­ing for more medal­lions, which would put more dri­vers on the road and reduce their pay. Still, the take­away is that you should always try to make sure your protest is about a tan­gi­ble work­place pol­i­cy. For instance, if you want to protest the Trump administration’s immi­gra­tion poli­cies, you could cen­ter your protest around a demand that the employ­er not con­duct vol­un­tary I‑9 audits.

One last thing to remem­ber is that if an employ­er has a rule that lim­its polit­i­cal speech at work, it has to be neu­tral on its face and neu­tral­ly applied. If you are fired for vio­lat­ing an employ­er atten­dance pol­i­cy to attend a ral­ly against Trump’s immi­gra­tion poli­cies, but anoth­er cowork­er who also vio­lat­ed the atten­dance pol­i­cy to attend a Trump ral­ly is unscathed, then the boss has vio­lat­ed the law by fail­ing to apply work rules neu­tral­ly and you should con­tact an attor­ney or the NLRB to report the violation.

Step 3: Build sol­i­dar­i­ty at work and in the community

Noth­ing pro­tects you more than the sup­port and sol­i­dar­i­ty of your cowork­ers and com­mu­ni­ty. Col­lec­tive action is a time-hon­ored and bat­tle-test­ed tac­tic. The more peo­ple sup­port you, the more the boss will be afraid to retal­i­ate against you. In the Fight for $15 cam­paign, orga­niz­ers per­fect­ed the art of the walk back.” After one of their now famous strike days, com­mu­ni­ty mem­bers, includ­ing cler­gy and local politi­cians, would walk strik­ing work­er back to fast food restau­rants in a show of com­mu­ni­ty pow­er. Build rela­tion­ships at work and in your com­mu­ni­ty to pre­pare for the fight ahead. Noth­ing is stronger than peo­ple power.

Sam Wheel­er is a Penn­syl­va­nia labor lawyer who has pre­vi­ous­ly worked in elec­toral pol­i­tics and in the legal depart­ments of sev­er­al nation­al unions.Leo Gert­ner is a labor lawyer in Wash­ing­ton, D.C., who pre­vi­ous­ly worked as a griev­ance rep­re­sen­ta­tive for jan­i­tors in Boston.
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