As the 2024 presidential election nears, workers may be wondering whether they can share political opinions at work without retaliation or reprimand.

Can you talk politics at work without being fired? The short answer is yes – and also no.

It all depends on where you work and the context in which you’re talking politics.

Contrary to popular belief, the First Amendment only protects you, as an employee, from government actions against you, says Florida-based employment attorney David Miklas.

But it’s actually a little more complicated than that. “So, if a police officer wanted to arrest you for wearing a ‘MAGA’ hat or a Biden hat, that would be violative of the First Amendment,” Miklas says. “But your boss could fire you for the same reason.” MAGA is short for the 2016 Donald Trump campaign slogan, “Make America Great Again.”

“In general, there are extremely limited situations where there’s any kind of free speech rights in a private workplace,” Miklas says. “I think it would be fair to say that most free speech rights generally don’t apply at work.”

When Can’t You Be Fired for Talking Politics at Work?

Exceptions exist where an employer cannot fire you for discussing politics at work. They are:

1. Your political talk bleeds into protected concerted activity talk.
2. Your employer’s actions have an impact on a certain protected class of people.
3. There’s a state or local ordinance that says otherwise.
4. Your employer is a public entity, such as a city, county or school district.

Let’s break this down.

1. Your Political Talk Bleeds Into Protected Concerted Activity Talk

The first exception is a big one for private employers. If your political talk devolves into subjects such as Black Lives Matter, under the current National Labor Relations Board configuration, your speech would be shielded as “protected concerted activity.”

“We saw a lot of this during the Black Lives Matter movement, where companies would ban wearing anything that said Black Lives Matter,” says Danielle Verderosa, a Virginia-based human resources consultant and owner of HR Allies.

“Politics comes into play, and this particular board under this particular general counsel has an extremely expansive view of what is protected and what is concerted,” Miklas says.

“Concerted activity refers to two or more employees taking actions to help or protect each other with respect to employment conditions or terms of employment,” Miklas says. “Right now, it’s a very risky time to assume something is not going to be protected concerted activity. So, my advice (to employers) would be: Before you fire anyone for any kind of political speech, run it by your employment lawyer because, right now, it is really, really risky.”

Miklas references a case involving Home Depot that allowed an employee to write “BLM” on a work uniform. “The justification was that that amounted – in that situation – to protected concerted activity,” Miklas says.

2. Your Employer’s Actions Have an Impact on a Certain Protected Class of People

The second exception is if your political talk has an impact on a certain class of protected people.

Say, your employer has a dress code policy that prohibits political speech, and you are Black, which is a protected group, and want to wear Nike clothing to support former football quarterback and civil rights activist Colin Kaepernick. “If the only people wearing that (clothing) are Black people, that policy can have a disparate impact,” Miklas says. “Enforcing that arguably neutral rule, if it has a disparate or unfair impact on one protected class, would violate Title VII.” If that’s happening, you might have a discrimination case, and you should contact a labor attorney.

3. There’s a State or Local Ordinance That Says Otherwise

The third exception is if there’s a state law or county or city ordinance that says you can engage in political talk at work.

For example, Broward County, where Fort Lauderdale is, has an ordinance that says it’s a discriminatory practice to publish a job advertisement indicating a preference limitation, specification or discrimination based on political affiliation. So, even though that’s not protected by federal law, it could be protected in a certain state, city or county.

4. Your Employer Is a Public Entity

The fourth exception is if your employer is a public entity such as a city, county or school district. Several factors have to apply for political speech to be protected. “The key case is a Supreme Court decision called Garcetti v. Ceballos, which came out in 2006,” Miklas says. “The Supreme Court held that when public employees make statements pursuant to their official duties, they are not entitled to the same free speech rates as private citizens.”

In short, a public entity cannot discharge you on a basis that infringes on your constitutionally protected freedom of speech as a private person, but it can if you speak out in the course of your public duties.

The case sets out a four-factor test. To state a claim for violation of your First Amendment freedom of speech rights, public employees would have to introduce evidence that demonstrates:

1. The speech in question was not pursuant to their official duties.
2. The subject of the speech is a matter of public concern.
3. Their interest in commenting on the issue outweighs the potentially disruptive effect of the speech.
4. Their speech was a substantial or motivating factor in the adverse action (for example, a termination or demotion) taken against them.

In conclusion, you don’t lose your First Amendment rights when you speak as a private citizen about matters of public concern, even when your speech involves something you learned at work. However, when you’re acting in your official capacity and speaking out on matters that are expressly part of your job description, you lose your rights.

“There’s not a guarantee that all public employees are going to be able to say whatever they want,” Miklas says. “They really just have to be talking as a private citizen and not part of their job.”

Where Political Speech at Work Leads to Lawsuits

Politics touches nerves. “Political issues of all types are such hot-button issues that for otherwise reasonable people, you don’t really know when you’re touching a nerve with them,” Verderosa says.

While feeling discomfort doesn’t rise to the level of discrimination, alienating those who don’t chime in or have a minority opinion could have a disparate impact on a protected group, Verderosa says. That could make for a perceived hostile work environment.

“Where I see things happening in the workplace is when certain issues spill over to debates,” Miklas says. Immigration debates can involve national origin issues. So, depending on what you say, you may create a hostile work environment based on national origin. Similarly, abortion rights can involve a worker’s religious beliefs, which brings up a Title VII issue. LGBTQ+ rights can be implicated as sex discrimination issues.

“These are important issues because (your) employer may be put in a position where they have competing interests, and they may have to make a hard call,” Miklas says. There’s some level of risk for the employer if they fire you based on political speech. But sometimes, an employer will have to roll the dice and do it. Says Miklas, “If they think it’s important enough for the safety of their staff and sometimes even the culture or their brand, there’s some level of risk, but sometimes they absolutely might have the legal ability to do it.”

Learn more about the rights associated with political speech at work at Workplace Fairness.