Private Employees' Speech and Political Activity: Statutory Protection against Employer Retaliation

Abstract

About half of Americans live in jurisdictions that protect some private employee speech or political activity from employer retaliation. Some of these jurisdictions protect employee speech generally. Others protect only employee speech on political topics. Still others protect only particular electoral activities such as endorsing or campaigning for a party, signing an initiative or referendum petition, or giving a political contribution.

Moreover, though the matter is not clear, federal law may often protect private employees who speak out in favor of a federal candidate. To my knowledge, these state and federal protections -- the first of which date back to 1868 -- have not been systematically cataloged, and some have never been cited in a law review article.

I am not sure such restrictions on private employers are a good idea. But whether the statutes are sound or not, they strike me as worth investigating. I therefore thought it would be useful to publish a list of the statutes that I could find and a summary of some of the key court decisions interpreting those statutes.

Keywords: First Amendment, Freedom of Speech, Antidiscrimination Law, Employee Rights, Election Law