Political debate isn’t just prevalent in the news or social media — it’s in Slack channels, office kitchens, and embroidered onto work attire. For HR professionals, this rising trend of political discourse raises a critical challenge: how do you balance employees’ rights to express political views with your responsibility to maintain a respectful, legally compliant workplace?
Recent guidance, lawsuits, and executive orders — coupled with shifting public attitudes — have made the line between “protected speech” and “policy violation” more complicated than ever.
Below are three key issues impacting workplace political speech that HR professions should monitor closely.
1. Political Speech Laws Vary — and They Have Teeth
In California and at least 11 other states, laws prohibit employers from restricting employees’ political activities. California Labor Code sections 1101 and 1102 protect employees from termination or discipline based on political activity.
For example, these laws would prohibit employers from terminating an employee for attending an off-duty political rally supporting or opposing a particular candidate. However, employees are not necessarily protected from political speech made while at work or on the employer’s premises, such as using the company’s premises to host an unapproved campaign event. Yet, any discipline for such conduct that focuses on the substance of the expressed speech may create potential legal risks.
Employers who violate California’s labor code sections can be liable for civil penalties, related litigation, and individual misdemeanor liability.
Other states offer narrower protection for employee political speech. For example, Illinois law only bars employers from keeping records of employees’ political affiliations. So, employees in Illinois have far less protection for their political speech.
HR takeaway: Know your state’s rules inside and out. What’s acceptable in Texas might be illegal in California.
2. Federal Anti-Discrimination Laws Still Apply — Regardless of Executive Orders
Federal, state, and local laws prohibit discrimination and harassment based on protected characteristics such as race, religion, sex, and national origin.
The Trump Administration has issued several executive orders addressing workplace speech, but state and federal discrimination and harassment laws still apply. However, the executive orders may alter how the law is applied.
For example, the Trump administration issued an executive order titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.” This order instructs federal agencies to end diversity, equity, and inclusion (“DEI”) efforts in federal contracting and encourages private employers to do the same.
Essentially, this order bars federal contractors from factoring race, color, sex, sexual preference, religion, or national origin in their employment practices – including in a manner that would benefit historically disadvantaged groups.
While this order does not change existing discrimination law for employers, the government is increasing investigation and enforcement activities in this area. Employers should review their current employment practices and DEI initiatives to ensure compliance with existing law.
HR takeaway: Continue to monitor the Trump Administration’s executive orders, which may impact application of antidiscrimination laws.
3. Social Media Remains a Litigation Flashpoint
Employees often believe the First Amendment protects their political speech at work. While employees may discuss issues directly impacting their working conditions, broader political statements are not necessarily protected while on the clock. Yet, disciplining employees for online political commentary still carries legal and reputational risk.
Activity on an employee’s personal social media account may lead to workplace risks if the social media account is public or can be accessed by colleagues. For example, if an employee posts about organizing a rally against transgender rights, and a transgender coworker viewed the post, that would likely upset the coworker.
To mitigate the potential for such incidents, employers should institute social media policies that encourage employees to treat their colleagues with respect, and to be mindful of their social media audience.
HR takeaway: Maintain a clear social media policy that is applied consistently, regardless of the political view expressed.
Best Practices for HR Managers Navigating Political Speech
For HR managers, the challenge isn’t to eliminate political expression but to navigate it strategically. HR managers navigating these waters should consider the following:
- Audit Policies Regularly — Ensure your political activity, discrimination, harassment, and social media policies align with current state and federal laws.
- Train Managers — Supervisors are often the first to respond to politically charged incidents. Equip them to handle situations without escalating risk.
- Apply Policies Consistently — Inconsistent enforcement — especially along ideological lines — fuels discrimination claims.
- Separate Conduct from Content — Discipline behavior that violates conduct policies (e.g., threats, harassment) rather than the political view itself.
- Document Decisions — Keep clear, objective records explaining the legitimate business reason for any disciplinary action.
- Think Locally — Follow federal developments but focus on your state’s laws when assessing legal risk.
- Weigh PR Risks — Even a legally defensible action can cause reputational harm if it becomes a headline.
Political speech in the workplace isn’t going away. In fact, the hybrid work era — with its mix of digital communication and personal brand-building — has only amplified the overlap between personal politics and professional life. Strategically addressing potential issues before they arise can both save employers money while supporting employee wellbeing.
Benjamin R. Buchwalter is special counsel and Jacqueline Gerson is an associate in Farella Braun + Martel’s Employment Law Group in San Francisco.