Presented at the 2021 Boise Employment Seminar by Christina M. Jepson

1. Ninth Annual Boise Employment Law Seminar
S E P T E M B E R 2 2 , 2 0 2 1 | B O I S E C E N T R E E A S T | B O I S E , I D A H O
par s ons behle.c om
B O I S E | I D A H O FA L L S | L E H I | R E N O | S A LT L A K E C I T Y
Political Speech in the Workplace
Christina M. Jepson
801.536.6820 | cjepson@parsonsbehle.com

2. Case Study: Whole Foods
https://www.youtube.com/watch?v=CPhIDJZtVk8&t=3s

3. 3
Whole Foods’ Dress Code Policy
• Whole Foods has a dress code policy that prohibits employees from
wearing clothing with visible slogans, messages, logos, and/or advertising
that are not Whole Foods-related
• A group of Whole Foods employees claimed they were sent home for
wearing masks and other attire with Black Lives Matter logos and received
disciplinary points that could result in termination or prevent them from
receiving annual raises
• They also claimed that Whole Foods had generally not enforced the dress
code policy in the past when employees wore items with other messaging
(such as LGBTQ+, NRA, and SpongeBob SquarePants symbols).

4. 4
Whole Foods Lawsuit
• Group of employees filed a class action lawsuit in federal court
(District of Massachusetts)
• Sued under Title VII (which prohibits race-based discrimination)
• Plaintiffs relied on an “associational discrimination” theory (i.e. that
they were subjected to discrimination for maintaining a relationship
with a member of a particular race)

5. 5
Outcome of the Whole Foods Lawsuit
• The District Court granted Whole Foods’ Motion to Dismiss on Feb. 5, 2021, holding that the Plaintiffs had
failed to state a claim under Title VII because their allegations demonstrated that Whole Foods treated all
employees wearing BLM attire equally, regardless of race. The Court explained:
• “It would, of course, be more honorable for [Whole Foods] to enforce their policies consistently
and without regard for the messaging . . . Nevertheless. . . Defendants did not discriminate on the
basis of race. Rather, at worst, [Whole Foods was] selectively enforcing a dress code to
suppress certain speech in the workplace. However unappealing that might be, it is not
conduct made unlawful by Title VII. . . .Whole Foods employees that are not happy with the
Policy can find someplace else to work, express themselves outside the workplace, work with
Whole Foods to change the Policy, and/or publicize the Policy in an effort to get consumers to
spend their dollars elsewhere, but, under the facts alleged here, their redress does not lie with
Title VII.”
Frith v. Whole Foods Mkt., Inc., Civil Action No. 20-cv-11358-ADB, 2021 U.S. Dist. LEXIS 22173, at *28-29 (D. Mass. Feb. 5, 2021).

6. 6
Political Speech – Potential Concerns
 Employee’s conduct leads to a “cancel”
movement directed at the Employer
 Employee’s conduct leads to public
scrutiny or customer scrutiny
 Employee’s conduct or discussions in
the workplace offend others or cause
disruption This Photo by Unknown Author is licensed under CC BY-SA

7. 7
• 42 percent of U.S. employees have personally experienced political
disagreements in the workplace.
• 56 percent of respondents believed the discussion of political issues had
become more common in the prior four years.
• 34 percent of respondents said their workplace was not inclusive of differing
political perspectives.
• Nearly 1 in 5 Americans have quit a job in the past five years due to toxic
workplace culture—costing U.S. companies approximately $223 billion in
turnover.
Source: Society for Human Resource Management – Oct. 2019 Survey; https://www.shrm.org/about-shrm/press-room/press-releases/pages/survey-finds-alarming-rise-of-politics-at-work.aspx
SHRM Survey - 2019

8. Can Idaho Employers Limit
Political Speech?

9. 9
Constitutional Considerations
• Do employees have right to free speech?
This Photo by Unknown Author is licensed under CC BY-NC

10. 10
Constitutional Considerations
• First Amendment: “Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances.”
• Idaho Const. Art. I, § 9: “Every person may freely speak, write and publish on
all subjects, being responsible for the abuse of that liberty.”
• Idaho Const. Art. I, § 10: “The people shall have the right to assemble in a
peaceable manner, to consult for their common good; to instruct their
representatives, and to petition the legislature for the redress of grievances.”

11. 11
Differences for Private Sector vs. Public Sector
Employers
• Public employers are “state actors” and therefore are limited by the
Constitution
• Private employers are not “state actors” and therefore are not limited
by the Constitution
• “The First Amendment and Article I, §§ 9 and 10 of the Idaho
Constitution do not apply to alleged restrictions imposed by private
parties.”
Edmondson v. Shearer Lumber Prods., 139 Idaho 172, 177, 75 P.3d 733, 738 (2003).

12. Private Sector Employers

13. 13
Edmondson v. Shearer Lumber Prods., 139 Idaho 172, 75
P.3d 733 (2003).
• Facts: U.S. Forest Service proposed ending commercial timber harvests
on the Nez Perce National Forest in Idaho
• A group known as “Save Elk City” opposed the Forest Service’s proposal
• Shearer Lumber operated a mill in Elk City, Idaho and its owner worked
with Save Elk City to submit a proposal to a Forest Service Task Force as
to how the Nez Perce National Forest should be managed
• Edmondson was informed that Shearer Lumber wanted its employees to
support its projects “if they wanted to avoid serious consequences.”

14. 14
Edmondson Facts (cont.)
• Shearer suspected that Edmondson opposed and undermined Save Elk
City’s proposal
• Edmondson was terminated with the following explanation: “Because of
your continued involvement in activities that are harmful to the longterm
interests of Shearer Lumber Products, we are terminating your
employment immediately.”
• Edmondson sued Shearer Lumber for wrongful termination, claiming
that—even though Idaho is an at-will employment state—Shearer’s
motivation for his discharge contravened public policy because it was
based on him exercising his constitutionally protected rights of free
speech and association.

15. 15
Edmondson Ruling
• The Court granted summary judgment in favor of Shearer Lumber. The Court
explained:
◦ “[A]n employee does not have a cause of action against a private sector
employer who terminates the employee because of the exercise of the
employee’s constitutional right of free speech.”
◦ “[G]overnmental restrictions on free speech and associative rights of
employees of public agencies . . . are inapplicable in the private employment
context in which Edmondson worked. . . . [S]tate or federal constitutional free
speech cannot, in the absence of state action, be the basis of a public policy
exception in wrongful discharge claims [of private sector employees].”

16. Are Private Sector Employers Subject to
Any Limitations?

17. 17
Yes, But Not Many
• The Edmondson case demonstrates that private sector employees
are generally free to restrict political speech in the workplace
• However, the National Labor Relations Act guarantees certain rights
for employees that private sector employees must respect
• Anti-discrimination laws may also provide some “free speech”
(complaining) or limit a company’s ability to be “discriminatory” in
terms of limiting speech (but see Whole Foods)
• Idaho Code § 18-2305 may also create certain restrictions.

18. 18
National Labor Relations Act
• Section 7 of the National Labor Relations Act (NLRA) “guarantees
employees… the right to… engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or
protection.”
• The clause “other mutual aid or protection” provides protection for
employees who join together to discuss political and social activities
that affect the terms and conditions of their employment.
• BUT: Political activity unrelated to employment is not protected
under the NLRA.

19. 19
Idaho Code § 18-2305
• “Every person who, by force, threats, menaces, bribery, or any
corrupt means, either directly or indirectly attempts to influence any
elector in giving his vote, or to deter him from giving the same, or
attempts by any means whatever, to awe, restrain, hinder or disturb
any elector in the free exercise of the right of suffrage . . . is guilty of
a misdemeanor.”
◦ This statute may restrain private sector employers from attempting to
improperly influence their employees’ vote, hindering their employees’ right
and ability to vote, or terminating/threatening to terminate an employee for
exercising their right to vote.

20. Public Sector Employees

21. 21
Public Employment – Finding the Right Balance
• “[T]he State has interests as an employer in regulating the speech of
its employees that differ significantly from those it possesses in
connection with regulation of the speech of the citizenry in general.
The problem in any case is to arrive at a balance between the
interests of the [employee], as a citizen, in commenting upon
matters of public concern and the interest of the State, as an
employer, in promoting the efficiency of the public services it
performs through its employees.”
Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S. Ct. 1731, 1734-35 (1968).

22. 22
Pickering v. Board of Education
• Marvin Pickering was a public-school teacher in Illinois
• He wrote a “letter to the editor” published in local newspaper
regarding a proposed tax increase
• Pickering’s letter was critical of the way the local Board of Education
and superintendent handled past proposals to raise new revenue for
the schools, and how the district allocated financial resources
between the schools' educational and athletic programs

23. 23
Pickering v. Board of Education
• The Board held a hearing and claimed that Pickering’s letter
contained false statements and “unjustifiably impugned” the Board
and administration
• Pickering was terminated
• Pickering sought review of the decision, claiming that his letter was
protected by the First and Fourteenth Amendments
• The Illinois courts upheld his termination, and the case eventually
reached the U.S. Supreme Court

24. 24
Pickering v. Board of Education
• SCOTUS held that Pickering’s 1st Amendment rights were violated. It
explained:
◦ “[S]tatements by public officials on matters of public concern must be
accorded First Amendment protection despite the fact that the statements
are directed at their nominal superiors.”
◦ “[A]bsent proof of false statements knowingly or recklessly made by him, a
teacher's exercise of his right to speak on issues of public importance may
not furnish the basis for his dismissal from public employment.”
Pickering v. Bd. of Educ., 391 U.S. 563 (1968).

25. 25
The Pickering Test - Three Primary Inquiries
1. Is the employee speaking as a citizen or as a public employee?
2. Is the employee speaking on a matter of public concern?
3. Does the employee’s interest in First Amendment expression
outweigh their employer's interest in the efficient operation of the
workplace?

26. 26
1. Is the Employee Speaking as a Citizen or as a
Public Employee?
• Garcetti v. Ceballos, 547 U.S. 410 (2006)
◦ Deputy prosecutor wrote a disposition memorandum explaining his concerns regarding
alleged inaccuracies in an affidavit used to obtain a search warrant in a pending criminal
case. The employee alleged that his supervisors retaliated against him based on his memo.
◦ Supreme Court held that the employee was speaking as an employee because he made the
statements pursuant to his official duties. The Court explained:
“Ceballos wrote his disposition memo because that is part of what he, as a calendar deputy,
was employed to do. It is immaterial whether he experienced some personal gratification from
writing the memo; his First Amendment rights do not depend on his job satisfaction. The
significant point is that the memo was written pursuant to Ceballos' official duties. Restricting
speech that owes its existence to a public employee's professional responsibilities does not
infringe any liberties the employee might have enjoyed as a private citizen.”

27. 27
2. Is the Employee Speaking on a Matter of Public
Concern?
• Sadid v. Idaho State Univ., 151 Idaho 932 (2011)
◦ Sadid was an Idaho State University professor. He publicly criticized the University
in various ads and letters published in a local newspaper.
◦ The publications expressed Sadid’s dislike for the former University President,
disappointment in the current President, and dislike for members of the
administration. In one paid advertisement, Sadid also speculated that Idaho State
University and the University of Idaho were conspiring to shift the engineering
program to the University of Idaho so that Idaho State University could create a
medical school.
◦ Sadid filed a lawsuit claiming that the University retaliated against him for publishing
these items. The alleged retaliation included not performing annual evaluations, not
appointing him to be the chair of his department, and only increasing his salary at
the lowest percentages allowed.

28. 28
Sadid - Idaho Supreme Court’s Holding
• In determining whether any of Plaintiff's speech at issue concerns a
matter of public concern, the inquiry is not his motivation for the
comments or the general tone of his comments.”
• “[T]he appropriate analysis is whether any of his comments involve
matters of public concern.”
◦ “Although much of the communications certainly express [Sadid’s] dislike for the former University
President, disappointment in the current President, and dislike for members of the administration . . .
[Sadid] speculated that Idaho State University and the University of Idaho were conspiring to shift
engineering to the University of Idaho so that Idaho State University could create a medical school.
The issue of a creating a medical school at Idaho State University was a matter of public concern.
Having concluded that there was at least one matter of public concern in his comments, we
need not address whether there were others.”

29. 29
3. Balance the State’s Interests Against the
Employee’s Interests
• “A public employee’s [speech] is not categorically entitled to First
Amendment protection simply because it is speech as a citizen on a
matter of public concern. Under Pickering, if an employee speaks as
a citizen on a matter of public concern, the next question is whether
the government had an adequate justification for treating the
employee differently from any other member of the public based on
the government’s needs as an employer.
Lane v. Franks, 573 U.S. 228, 242, 134 S. Ct. 2369, 2380 (2014)

30. 30
The State’s Interests
• “[G]overnment employers often have legitimate interests in the
effective and efficient fulfillment of their responsibilities to the public,
including promoting efficiency and integrity in the discharge of official
duties, and maintaining proper discipline in public service.’”
• However, “a stronger showing of government interests may be
necessary if the employee’s speech more substantially involves
matters of public concern.”
Lane v. Franks, 573 U.S. 228, 242, 134 S. Ct. 2369, 2381 (2014)

31. 31
The Employee’s Interest
• Public employees have a strong interest, as citizens, in commenting
upon matters of public concern.
• The public also has an interest in hearing from government
employees because “[g]overnment employees are often in the best
position to know what ails the agencies for which they work; [and]
public debate may gain much from their informed opinions”
Waters v. Churchill, 511 U.S. 661, 674 (1994).

32. 32
Considerations When Balancing Interests
• Pertinent considerations in this balancing test are "whether the statement
impairs discipline by superiors or harmony among co-workers, has a detrimental
impact on close working relationships for which personal loyalty and confidence
are necessary, or impedes the performance of the speaker's duties or interferes
with the regular operation of the enterprise.“
Rankin v. McPherson, 483 U.S. 378, 388 (1987).
• “Law enforcement agencies' unique character as paramilitary organizations
justifies greater curtailment of their employees' constitutional rights, given the
employer's—as well as the public's—strong interest in the provision of safe and
effective law enforcement services.
Godwin v. Rogue Valley Youth Corr. Facility, 656 F. App'x 874, 877 (9th Cir. 2016).

33. Discussion Scenario

34. 34
Scenario
• Mountain Sports is an Idaho sporting goods company located in the
more liberal leaning Ketchum. Its customers tend to be politically to
the left and the Company is careful about its image to ensure that its
customers keep coming back. Mountain Sports has a high-level
employee named George Freemason. George is not so politically left
and he is Q Anon curious. Shortly after the Capitol attack on January
6, 2021, George’s supervisor, Amy, sees photos on CNN that appear
to show George at the Capitol riot and smashing a glass door at the
Capitol building. She alerts HR.

35. 35
Scenario
• While HR is mulling this over, several of Mountain Sports’ customers
contact the company and threaten to “cancel” the Company if it does
not immediately fire George.
• HR and Amy talk to George and he denies that he was at the riot
and denies he broke a window. He says he was hunting that day.
• Other employees start emailing to each other and customers other
photos that appear to be of George at the riot. They add the caption
“Traitor in our Midst.” George hears about this and threatens to sue
the company for defamation.

36. 36
Scenario
• HR begins an investigation and learns that prior to the riots, George
was making a lot of interesting comments in the workplace about his
political views and how Q Anon was fighting immorality.
• HR also learns that George has been posting interesting posts on
FaceBook, Twitter and Parlor about Q Anon conspiracies. HR does a
search of George’s emails, texts sent on his company supplied
phone and social media posts that are open to the public. HR is
shocked to find out how much time George was spending on these
activities at work.

37. 37
Scenario
• IT tells HR that it can probably use George’s phone to determine if
he was near DC on January 6th.
• Some of George’s social media posts are “private” but co-workers
who are social media friends bring in copies of the posts. They show
that George supported the Capitol riots.
• As George hears more about this investigation, he gathers several of
his co-workers who share his views, and they start talking about the
company’s repression of their First Amendment Rights.

38. 38
Scenario
• During the investigation, one co-worker says that she researched
George on the internet and found out that he had a criminal record
for assault with a gun. HR had done a criminal background check
when he was hired but apparently this arrest or conviction happened
a year after he started at the Company.

39. 39
Scenario
• HR cannot figure out what to do. You are an HR consultant, so they
hire you. The Company says to you “please help us with this mess.”
• What if this is a private company?
• What if it was a public sector employer?

40. Summary

41. 41
• The First Amendment and the Idaho Constitution only prohibit the
government from restricting free speech—not private employers.
• Generally, private employers have broad discretion to discipline or
discharge employees because of their political speech to ensure the
employer’s ability to operate a productive workplace. However, the
NLRA protects certain activities, and employers cannot infringe upon
their employees’ right to vote.
• When a public employee speaks as a citizen on a matter of public
concern, the employee’s speech is protected unless the interest of
the state, as an employer, in promoting the efficiency of the public
services it performs through its employees’ outweighs the interests
of the employee in commenting upon matters of public concern.

42. 42
 Some companies may want to prepare
and implement a strong “no political
activity” policy with appropriate exceptions
for NLRA and applicable state laws
Practical Tip: No political activity policy

43. 43
 Individuals are increasingly turning to social
media to express their political views, and
these posts can become heated and hostile.
 Employers should consider implementing
policies to help prevent employees from using
social media or the employer's IT resources to
harass their colleagues or attribute personal
political opinions to the employer.
 However, employers must be careful not to
restrict or chill employees' Section 7 rights
under the NLRA.
Practical Tip: Social Media Policies
This Photo by Unknown Author is licensed under CC BY-SA-NC

44. 44
 If employer’s policy does permit some workplace discussions of
candidates or issues:
o Remind employees that political discussions must also comply with existing
workplace policies
o Periodically remind employees that company insists on respectful treatment
of all personnel, does not tolerate discrimination, harassment or retaliation,
etc.
o If you limit political expression, limit only the types of expression that might
harm productivity in the workplace, impact customers, clients, vendors or
similar relationships or otherwise disrupt work
o Enforce “political activity” policy even-handedly
Practical Tips

45. 45
 May want to implement a non-solicitation policy that prohibits all
forms of solicitation – including political campaigning – during
working time
Practical Tips

46. 46
 Remind managers and supervisors to avoid political conversations
or discussions with their subordinates
o Consider company policy language
Practical Tips

47. 47
 Remind managers to report employee
complaints, even if complained-of conduct
has political overtones.
Practical Tips
This Photo by Unknown Author is licensed under CC BY-NC-ND

48. 48
 Remind managers to evenhandedly enforce dress
code and non-solicitation policies
 Enforcement should not be influenced by an
employee’s political views or activities
Practical Tips

49. 49
 Communicate with supervisors
regularly during campaign and
election season to ensure that they
understand the importance of
creating a respectful, politically-
neutral, work environment
Practical Tips
This Photo by Unknown Author is licensed under CC BY-SA

50. 50
 Be sensitive to potential discrimination, harassment and retaliation
issues.
 While political beliefs at work are not protected in the same manner
as, say, religious beliefs, the potential exposure to these types of
claims remains prominent.
Practical Tips

51. 51
 Seek counsel before disciplining any employee for his/her political
activities, including missing work to attend a political rally
 Seek counsel so workplace handbooks and policies are properly
written to comply with various laws
Practical Tips

52. 52
Thank You
• Christina M. Jepson
801.536.6820
cjepson@parsonsbehle.com