The current political climate has sparked an unprecedented rise in political activism, both on the left and the right. Which is great! It’s good for democracy for citizens to be engaged in civic activism and publicly working to shape policy. But a lot of these activists are new activists, fresh on the scene, and might not know what public political activities could get them in trouble with their employers. Take, for example, Sally Avelenda, who was part of a New Jersey group pressuring its representative, Rodney Frelinghuysen, to respond to his constituents.
In a fundraising letter Frelinghuysen sent to a board member of the bank that employed Avelenda, Frelinghuysen added a handwritten note identifying her as a “ringleader” of forces “hard at work to put a stop to an agenda of limited government, economic growth, stronger national security.”
In legal parlance, this is known as a dick move. Avelenda was hauled in front of the Lakeland Bank’s board and asked to explain herself; she says the ensuing pressure caused her to quit.
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Which got me thinking: If you’re a marcher, a rallier, a keyboard warrior, a leaflet dropper, postcard-writer, or whatever, how can you protect your job? How can a newly energized activist get loud and proud on the weekends and still avoid retaliation from her employer? I spoke to Eric Bachman, an employment lawyer at Zuckerman Law in Washington, and David Wachtel, an attorney at Trister, Ross, Schadler & Gold in Washington, to get some advice.
First, consider your employer.
If you’re a federal, state, or local employee, you probably enjoy greater protections for political speech than you would if you’re a private employee.
Bachman says, “You have to recognize the differences between being, for example, a federal government employee versus working in a private company, because there are pretty drastic differences in the protections that might apply to you …. In a nutshell, there’s far fewer protections for most private-company employees out there. Federal employees enjoy greater protection from the First Amendment and the Hatch Act, as well as some other statutes.”
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One exception: If you’re working on behalf of a union—say “this union supports Barack Obama”—you’ll have a bit more protection under the National Labor Relations Act.
Where things gets tricky is if you’re an at-will employee, which means you can be fired for pretty much any reason at any time (unless you’re in one of the approximately nine states that have some legal protections for political expression). So you alone will have to weigh the likelihood of getting canned for going to marches or organizing meetings with the intent of, say, ousting your member of Congress and replacing him with someone you like better.
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In this kind of situation it’s obviously useful to consider your boss’s views, and/or your company’s relationship with local politicians, and how sympathetic they might be to your goals. If they spot you on the evening news marching for Planned Parenthood, is that, at the very least, going to make for uncomfortable water-cooler chat and at worst land you on the receiving end of a pink slip? If so, you might want to:
Agitate anonymously if you can.
David Wachtel says, “If an employee is in a high-pressure situation where they’re worried about job safety, they should think about outlets for anonymous expression.” The National Parks Service employees famously solved this problem with an alternative Twitter account, (as have NASA and the U.S. Forest Service) and Twitter has so far refused to identify the owners of those accounts to the government. Wachtel says “in a worst-case, high-pressure environment, anonymity is a way to express yourself politically with less risk.”
On a smaller scale, if you just want to organize, publicize, or simply express garden-variety outrage on social media, consider using an pseudonymous second account, and don’t connect with any work colleagues.
Don’t do anything on company time.
Or on company email, company computers, or even the company photocopier. Don’t accidentally dial someone on the company cell phone while you’re screaming he’s orange, he’s gross, he lost the popular vote. This goes for government employees too: You don’t want to give anyone a reason to think you’re using government resources for political activity.
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If you’re an at-will employee, Wachtel says, “Don’t use your employer’s computer to plan your trip. Do not identify yourself by who you work for. You can do all of those things to give them less grounds, but if the employer is going to see your picture on the news…[and you’re at at-will employee], you really don’t have much protection.”
You also want to make sure that your political activity is legal. Bachman says, “You run the risk of being able to be lawfully terminated the more you stick your neck out,” so you don’t want to be arrested for trespassing, for example. All of this will reduce your chances of attracting attention and giving your boss a reason to fire you.
Consider if your activism does affect your ability to do your job effectively.
Employers of all stripes can fire you if your activity affects your performance, or causes problems in the workplace. Bachman says, “It can’t create a disruption in the workplace by virtue of your conduct or your statements.” That’s obviously a subjective test, but still one worth considering: You don’t especially want an ob-gyn up front and screaming at pro-life rallies, which might make her patients doubt the impartiality of her information or advice; you don’t want a third-grade teacher visible at a Klan rally, which would likely make parents reluctant to enroll their kids in his class.
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Be good at your job.
Also relevant to consider: How useful are you to your company? Most employers don’t want to be firing good workers left and right for merely marching for science or whatnot. As Wachtel says, “It’s not a smart thing for the employer to lose productive employees over something like that, where the person is doing their job. Long term, punishing speech not a productive way to get good work out of your employees.”
In the short term? Get your anon Facebook count up and running, do your photocopying at Kinkos, and dig in. If you have to do your community organizing under the handle “BingoMavensForJustice,” so be it. Civic activism is worth a tiny bit of virtual cloak and dagger.
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