Dudash: Responding to Troy Foster on political speech at work

I take issue with a letter by Troy Foster, “What workers, employers need to know about political speech at work.”

Foster asserts that political speech is protected in the public sector under the First Amendment, but private employers have “less clear boundaries on regulating political speech within their organizations.” This statement is somewhat misleading in its suggestion that the boundaries in the private sector are unclear.

In reality, the law is quite clear: private employers have broad discretion to regulate political speech in the workplace. The First Amendment protects individuals from government interference in speech, not from actions by private employers. Thus, private sector employees do not have the same constitutional protections as public sector employees when it comes to political speech.

Foster correctly notes that Arizona is an “employment-at-will” state, where employers can terminate employees for any lawful reason, including opposing political views. However, his explanation regarding the National Labor Relations Act (NLRA) lacks clarity. The NLRA protects concerted activities related to wages, hours or terms and conditions of employment. This does not extend to political speech unless directly tied to these specifically protected activities.

Moreover, while Foster suggests that employees have a right to political expression outside of work, this is only partially accurate. In “at-will” states like Arizona, employers can take action if they believe an employee’s political activities outside work negatively impact the business. For example, woke employees can be fired simply for their annoying wokeness – no protection provided.

Foster’s advice for employers to include non-discrimination policies related to political beliefs is not legally required and may limit managerial discretion. While Foster encourages seeking legal counsel, his suggestion that employees might have grounds for legal claims based on political speech is doubtful, unless such speech is tied to an actual legally protected activity.

Editor’s note: Gregg Dudash earned a master’s degree in employee relations from Loyola University of Chicago and has extensive experience in public sector Human Resources (HR). He also held an internship at the National Labor Relations Board (NLRB) as an investigator. Reader reactions, pro or con, are welcomed at AzOpinions@iniusa.org.