Ripped From the Headlines: Do Employees Have a Right to Engage in Political or Social Advocacy at Work?

The events of 2020 have created an environment in which an increasing number of people desire to express themselves in the workplace.  This has led to disagreement between employers and employees about whether such expression is legally protected, and thus cannot be prohibited by the employer.

The latest and most significant example of this trend is the pending dispute between Whole Foods and employees who wore Black Lives Matter face masks to work and were disciplined as a result.  Whole Foods is not the only large employer confronting these questions; it was recently reported that Whataburger has also been accused of race discrimination by terminating an employee following a customer complaint about her Black Lives Matter mask, and numerous other large employers have made headlines for similar reasons.

So what are the rules about whether and when employers can restrict employee expression about these issues at work?  Have the rules changed in the charged atmosphere of 2020, where there appears to be more protest, about more issues, than at any time in recent memory?  And regardless of the legal rules, is restricting expression at work a good business decision?

This post will explore these questions and set forth the key principles that employers should consider when employee protest and advocacy occur at work.  These principles can be summarized as follows:

  1. There is no right to engage in pure political or social expression in the workplace and nothing that has happened this year has changed that. None of employment laws protect political or social activity that occurs in the workplace, yet is wholly unconnected to work.  (Note that certain state laws do protect advocacy or activity that occurs outside of work.)  For example, a recent NLRB guidance letter reiterated the Board’s and courts’ longstanding position there is no protection under the National Labor Relations Act for political advocacy for causes, such as police reform, that do not relate to the employee’s employment.  Based on the substantial precedent on this issue, it’s a fairly good bet that expressions that merely support a political candidate or social movement (e.g., “Make America Great Again,” “Biden/Harris 2020,” “Defund the Police,” support for the “Right-to-Life” movement) are not protected, and employers may lawfully restrict them from the workplace if they do so in a neutral and even-handed way.  (More on this latter point below.)
  2. However, statements that contain elements of political or social expression can be protected to the extent they also protest conditions in the workplace, not merely society at large. Among other things, the employment laws protect expression that draws attention to discrimination in employment (protected under Title VII and other employment discrimination laws), concerted protest about low wages (protected under the National Labor Relations Act), or protest regarding unsafe working conditions (protected under the OSH Act and sometimes the National Labor Relations Act).  The scope of these protections is fairly broad; for example, the NLRA has been interpreted to protect concerted protest by employees not only about their own working conditions, but about the conditions of employees of other  If employee speech that implicates political or social causes also relates to employee working conditions—e.g., “Fight for $15” buttons—it can garner protection.  In-N-Out Burger, Inc. v. NLRB, 894 F.3d 707 (5th Cir. 2018).  This is often a fact-specific inquiry that rests on the particular message and the context in which it is being conveyed.   This is one of the core issues in the dispute between Whole Foods and employees over Black Lives Matter masks.  Whole Foods argues that because Black Lives Matter is a broad social movement unconnected to the workplace, the masks do not implicate protected expression under the anti-discrimination statutes.  The employees counter that they are invoking Black Lives Matter specifically in support of Black employees at Whole Foods and other employers, and that they are further protesting Whole Foods’ refusal to allow the employees to wear the masks in the first place, which they contend was a discriminatory decision.  To assess the degree of protection the mask-wearing is entitled to, the court presiding over the dispute will likely need to consider the underlying facts to determine the employees’ purpose in wearing the masks, including whether they were worn in connection with workplace grievances.
  3. Even potentially protected expression, however, can lose its protection if it unreasonably interferes with the performance of work. Courts have held that putatively protected activity under Title VII loses protection if the nature of the expression “renders [the employee] ineffective for the position for which he was employed.”  Douglas v. DynMcDermott Petroleum Ops. Co., 144 F.3d 364, 374 (5th 1998).  Similarly, under the National Labor Relations Act, there is a narrow exception in which putatively protected speech loses protection when it clashes with the company’s legitimate and reasonable efforts to present a certain image to customers, significantly exacerbates employee dissension, or creates unsafe conditions.   In-N-Out Burger, Inc. v. NLRB, 894 F.3d 707 (5th Cir. 2018).  While these rules will not typically eliminate protection for speech based on the message alone, if that message is coupled with conduct that disrupts the workplace or the employee’s ability to perform, it may become unprotected.  A potential question in the Whole Foods matter is whether invoking a broad—and to some persons, controversial—social movement in support of workplace grievances is sufficiently disruptive to employees or customers as to remove any protection for the conduct.
  4. Consistency is key—disparate enforcement of a dress code or other conduct policy can lend support to employees’ argument that the company is targeting messages from only certain protected groups, so that there is no legitimate reason for precluding the speech. This is what the employees in the Whole Foods dispute have argued in claiming that Whole Foods does not enforce its dress code against other types of non-work-related messages, such as “Lock Him Up” pins, “Nasty Woman” pins, and masks with American Flags, Pride symbols, and other symbols and messages.  The employees argue, therefore, that they are being unlawfully targeted because of the race-conscious message they are promoting.  Whole Foods has responded, in part, that the relevant issue is whether it has enforced the Black Lives Matter ban only against certain groups of employees based on race – which it says it has not.  This is a difficult legal question that will likely require the court to consider the extent to which racial animus may be a part of Whole Foods’ decision to ban Black Lives Matter masks, but permit other non-work-related messaging.
  5. Because an employer may lawfully restrict a certain message does not necessarily mean that it is good business to do so. As the Whole Foods and Whataburger examples show, restricting certain forms of expression can create employee morale issues, cause bad publicity, and result in lawsuits.  Employers need to carefully weigh these considerations against the business reasons that would impel them to restrict the expression.

The Bottom Line for Employers

Employee protest or advocacy at work raises complex legal issues.  Two basic points are clear:  (1) Speech about purely political or social issues is not protected, and (2) employers may generally maintain employee dress codes and conduct codes.  But the issue can get complicated, as some protest/advocacy may nevertheless be sufficiently connected with workplace concerns that it could be protected under one or more employment laws.  And if there is disparate enforcement of the company’s rules, that can add to the risk.

Before enforcing a dress or conduct code with respect to employee protest or advocacy activities, employers should ask themselves these questions:

  • Is the activity entirely related to political or social issues outside of the workplace? Or is there the possibility that the activity relates to the conditions of employment of the employee or others?
  • Does the activity significantly interfere with the employee’s (or other employees’) ability to do the job, interfere with customer relationships, or create unsafe conditions?
  • How has the company previously treated arguably non-work-related advocacy and protest activity?
  • Even if there appears to be a legal basis to prohibit the activity, is that the right business decision?

The answers to these questions will assist employers and their legal counsel in determining the amount of legal risk that may exist when balancing employee activity with the company’s dress or conduct codes.