Texas employees have good reason to worry about how the polarized political climate may affect their jobs. Certainly changes in employment laws could have a meaningful change to employment in Texas. These could occur in changes to: civil rights protections for gay and transgender employees; minimum wage and overtime pay regulations; investment adviser fiduciary duties to retirement plans; protections against retaliation for social media activity under labor laws; reduced OSHA oversight; and changes to the ACA health care laws. Beyond these changes, Texas employees may face job problems merely for discussing political issues at work.
The short answer to the question posed in today’s blog is generally yes. An employer can fire you for discussing politics at work if you are an at will employee. Like most areas of employment law, there are a number of exceptions and the facts of a particular situation may involve other issues that invoke protections for your job.
For example, the employer may have a rule that employees do not discuss political issues at work to avoid hostility. Employees discuss wage issues at work. Is this a political issue or a legal issue about work? It could definitely be a political issue. President Trump’s Labor Secretary will likely oppose expanding minimum wage and overtime pay protections proposed by the prior administration. That’s political. If the employees discuss that probability within the context of the pay structure of their jobs then that discussion is probably protected under the National Labor Relations Act as concerted activity to improve workplace conditions. A handful of words can change the protections around that discussion. You can see why employees usually hire an employment and labor lawyer to parse out these situations.
The basic rule: Texas employers can fire you for political discussions
Like most problems in employment law we have to begin looking at whether the employee is an at-will employee or an employee working under contract. An employee working under contract has contractual job protections under the terms of the contract. An at-will employee works at the mercy of the employer except where federal or Texas employment laws prohibit adverse employment actions (e.g. wrongful termination). An employee with a contract still enjoys most legal job protections but enjoys an additional layer under the terms of the contract.
Without a contract, an at-will employee fired for discussing politics in a Texas workplace will have to look for legal protections. Employers generally have broad authority to prohibit discussing various topics at work. They are generally free to fire employees for conduct without prior warning or creating a rule that lets employees know not to discuss politics.
We’ll next discuss a few common protections that might arise in these situations. Remember, however, that although an employer may be limited in firing an employee for political discussions, an employer generally has the legal power to limit conduct during paid time and certain authority to limit conduct off the clock, especially on the employer’s property.
Protections for public employees in Texas
Public employees in Dallas and Fort Worth enjoy a number of legal protections to their jobs through both the federal and Texas constitutions. Specifically, they enjoy free speech protections for certain types of speech even at work. This generally applies to political speech to protect them from punishment for supporting candidates or views opposite of their superiors and elected officials. Public employers can still create rules that limit political discussions at work, within reason, but must apply those rules uniformly. Judicial decisions on this topic often rest on thin distinctions and in these cases hiring a Texas employment attorney would help draw those distinctions.
Protections when political issues are workplace issues
Difficult situations arise when political issues touch on workplace issues because the distinction between a purely political discussion and a discussion about workplace conditions may be razor thin. Under the National Labor Relations Act employees are protected from employer retaliation for discussing workplace conditions, improving workplace conditions and taking certain actions (like unionizing) to improve workplace conditions. The example above shows how easily an intersection between politics and workplace arises. Often this intersection exists around labor and employment laws because there is a natural intersection with those laws and workplace issues. Generally broad discussions about the political aspects are not specific to the Texas workplace and not protected. Discussions specific to those issues as they relate to the employees or employer more likely enjoy protection under the NLRA.
When employment discrimination laws intersect with political discussions
Political discussions may delve into race issues, religion, sex/gender, age, disability, or national origin. These are all issues revolving around employment discrimination laws. Employees generally do not have protections to discuss these topics, except to request reasonable accommodations or report discrimination. The discussions may pose other problems. Employers may be on the lookout for political conversations that may create a hostile work environment towards other employees. Generally employers are not only allowed to take that action but encouraged to do so.
Employers get into trouble by choosing conversations to shut down not to prevent hostility but openly allowing or creating it. For example, a conversation about immigration might make negative comments about Muslims or Latinos. If the employer allows those conversations but shuts down and punishes employees for conversations criticizing the administration’s immigration policies that could definitely create a claim for employment discrimination.
Other employment discrimination issues can arise when employers fire employees for holding views that implicate a protected trait. For example, an African American employee supporting Black Lives Matters and fired for that support might have a claim for racial discrimination. A more obvious example would be firing an employee for a particular belief. The challenge in these cases is to prove the employer’s motivation. That is a job for a wrongful termination lawyer in Texas.
Should you discuss political issues at work?
There’s no definite answer here; but generally you can’t lose your job for not discussing political issues so that is often the better answer. A casual political conversation is undoubtedly less important than your job. The nation is so polarized that harming your job over a casual conversation is just too easy right now.
Schedule a consultation with a Texas employment attorney
If your employer terminated you over a political discussion then you should talk to an employment attorney near you about the situation. You may have a claim against the employer for one or more of the following:
- Wrongful termination
- Race discrimination
- Religion discrimination
- Violating your rights to cooperate with coworkers to improve workplace conditions
- Hostile work environment
Although Texas employers have wide latitude to terminate at-will employees over workplace conversation, there are limits. Beyond the limits are legal claims like the examples above. Scheduling a consultation with a Texas employment attorney will give you the opportunity to discuss what led to your termination and whether a potential claim exists. Additionally, you may have claims for unpaid wages, overtime pay and other compensation as a result of other bad acts by your employer.