Presently, Indiana law does not prohibit a private employer from taking an adverse employment action against an employee in retaliation for the employee’s political affiliation or activity. Indeed, there are only 3 states that do prohibit discrimination based on political affiliation or activity by a private employer: New York, Washington D.C., and California. There is also no current federal law that protects political speech in the private workplace. But what about the First Amendment?
But what about the First Amendment?
Although the First Amendment broadly protected our right to freedom of speech, especially when we’re expressing views about politics, the First Amendment applies only to state action – that of federal, state or local governments and some quasi-governmental entities. The First Amendment’s protection of free speech does not apply in the private workplace. As such, private employers can bar political discussions at work and it is not a violation of the Constitution for an employer to terminate an employee for expressing political views contrary to the employers.
Even though there is no general federal law prohibiting employment discrimination on the basis of political affiliation or speech, apparently nonpartisan discussions about politics and candidates could lead to claims of employment discrimination or harassment. As such, many employers have company policies limiting the discussion of politics at work. Candidates’ genders, race, or religious affiliations are often mentioned during political discussions, which could lead to allegations of discrimination. Additionally, polarizing and emotional topics like abortion, immigration, and sexual orientation which commonly arise in political discourse can lead to claims of harassment at work.
While currently there is no federal law prohibiting discrimination based on political speech at private workplaces, under the National Labor Relations Act (NLRA), both union and non-union employees who speak out about political issues related to employment may be protected. The National Labor Relations Board (NLRB) has specifically held that political advocacy for or against issues related to employment concerns that are not disruptive and occur during non-work time and in non-work areas are generally protected. This type of advocacy could include protests related to minimum wage and health care and coverage in an employer’s breakroom. That being said, such campaigning may be subject to lawful and neutrally-applied restrictions during on-duty time.
Also, unlike in other states, in Indiana a private employer is not required to give its employees time off work to vote. However, Indiana law does prohibit employers from influencing an employee’s choice of candidate or from otherwise influencing the employee’s political opinion or actions. See Indiana Code 3-14-3-21.