Employee Speech v. Workplace Values: A Defense of At-Will Employment and Private Employer Regulation of Political Speech

The public policy underlying at-will employment—and particularly our collective interest in freedom of choice in the employment relationship—weighs in favor of allowing employers to regulate their employees' political activities and thus align personnel decisions with organizational values. Beginning with an exploration of the laws that somewhat limit employers' ability to regulate their employees' political activities, this Essay considers the National Labor Relations Act, Title VII of the Civil Rights Act, state anti-discrimination laws, state laws governing captive audience meetings, and state employment protections for political activity. This Essay applies these laws to three increasingly prevalent employer practices: (1) prohibiting employees from engaging in political advocacy in the workplace; (2) mandating attendance at employer-sponsored political meetings (captive audience meetings); and (3) disciplining employees, or rejecting applicants, based on their political activities outside of work. Under current law, most private employers are free to regulate political speech and conduct both in and out of the workplace—and this Essay argues that, as a matter of public policy, this is the right outcome. Just as employees are free to choose workplaces that align with their political beliefs and personal values, employers should be free to build their workforces based on those same considerations.