The 2016 Presidential Election – you can’t escape it. Everywhere you look – Hillary versus Trump, Trump versus Hillary (even this blog!). It makes one wonder – we’re entitled to Free Speech under the First Amendment of the United States Constitution, so does that mean we’re free to discuss politics wherever we please – like in the workplace?
The short answer is – probably not.
While those of us that work for public employers are entitled to a modicum of protected speech in the workplace – those of us working for private employers are generally out of luck. The late justice Antonin Scalia put it eloquently in his dissenting opinion: “This is a free country. Every American has the right to express an opinion on issues of public significance. In the private sector, of course, the exercise of that right may entail unpleasant consequences. Absent some contractual or statutory provision limiting its prerogatives, a private-sector employer may discipline or fire employees for speaking their minds.” 1
Even though the Texas Constitution (Section 8) provides a free speech guarantee similar to that of the Federal Constitution, Texas Courts have held that it only protects from the transgressions of higher powers. The Supreme Court of Texas held that “the guarantees of the Texas Bill of Rights generally apply only against the government… Similar protections do not exist for actions by private individuals.” 2
So what does this mean for you? Do you have carte blanche to discuss the election at work? No, you don’t. Texas is a strong at-will employment state, and a private employer is free to terminate you for voicing your opinion (or for no reason at all). In contrast, a public employer who terminates an employee for exercising the right to free speech must survive a balancing test weighing the employee’s interest in commenting on matters of public concern against the employer’s competing interest in efficiency and workplace harmony.
That being said, under the Texas Election Code, the Texas Legislature has enumerated the following specific protections of your right to suffrage, with which you should be familiar this Fall:
1. It is a misdemeanor for an employer to refuse to allow an employee to miss work to attend a political convention, or to subject the employee to a penalty for attending.
2. It is a misdemeanor for an employer to refuse to allow an employee to miss work on election day to vote. Caution should be exercised there though – if the polling times of 7am – 7pm include two consecutive hours outside of the employee’s working hours, then this provision does not apply.
3. It is a felony for an employer to retaliate against an employee who has (1) voted a certain way or (2) refused to reveal how he voted. Prohibited retaliatory acts include subjecting or threatening to subject the employee to a loss of wages, reduction of wages, or reduction to another benefit of employment.
So this Fall, be careful what you say at work, but be sure to go out there and cast your vote!
1 Waters v. Churchill, 511 U.S. 661, 694 (1994).
2 Republican Party v. Dietz, 940 S.W.2d 86, 89 (Tex. 1997).
