Political Shirts at Work: Personal Expression or Policy Violation?

Our subject matter experts take a lot of calls on a variety of HR topics. Here is one we have received from an employer:

Q: An employee came to work wearing a shirt supporting a politician. I don’t like this particular politician, and I told them they were not allowed to wear it, but they claimed it was their First Amendment right. What are my options?

A: While employees do have some protections related to political expression, private employers are generally permitted to enforce a dress code that restricts political messaging in the workplace—including clothing that supports specific candidates. The First Amendment protects individuals from government restrictions on speech, but it does not apply to private employers. This means you may lawfully prohibit employees from wearing politically affiliated clothing, distributing campaign materials, or soliciting donations for political candidates or causes while on the job. However, make sure to apply your policy consistently, regardless of political affiliation.

What if the employer wants to hold a meeting and discuss their own political beliefs? As a reminder, under California law, both public and private employers are prohibited from firing, disciplining, retaliating against, or threatening employees who choose not to participate in meetings where the employer expresses its views on political or religious matters. Political matters are broadly defined to include elections, political parties, legislation, regulation, and positions on labor or political organizations. There are limited exceptions for religious, political, and educational institutions. Violations of this law can result in a $500 fine, civil liability, and enforcement action by the Labor Commissioner.

Best Practice is to keep politics out of the workplace as much as possible.  Employers should refrain from expressing or promoting their personal political views to employees in the workplace.  Furthermore, before taking action against an employee wearing clothing that supports a particular political figure or party, review your company’s dress code policy to ensure it specifically addresses political attire. Make sure the policy:

• Has been clearly communicated to all employees,
• Is applied consistently and fairly across all political viewpoints,
• Is neutral in its application (i.e., does not favor or oppose any particular party or candidate).

Having a clear, consistently enforced, and viewpoint-neutral policy is your best defense in managing political expression in the workplace.

Need help reviewing or drafting such a policy for your employee handbook? CEA members may reach out to us with HR questions at 800.399.5331.