For public employers, regulating political speech of employees has always been a dicey situation. First Amendment issues are always difficult to navigate, and the gray area for public employers to implement practices to increase efficiency in the workplace has narrowed over the years. The balance of political speech versus an employer’s desire to maintain a peaceful working environment was discussed in Amalgamated Transit Union Local 85 v. Port Authority of Allegheny County.
To make matters more complicated for the Port Authority of Allegheny County (and many other public employers) over the last year and a half, one of the greatest civil rights movements in the last 60 years came to a fever pitch with the murder of George Floyd in Minneapolis at the same time a worldwide pandemic set in, requiring the transportation provider to implement mask requirements for its operators. Following the George Floyd murder, several employees began to wear Black Lives Matter masks to show support for the movement.
In response to one employee asking whether it would be acceptable for him to wear a “White Lives Matter” mask to work, the employer decided to extend its restriction on “political and social protest” messages on employee uniforms to employee masks. When that didn’t work to curtail the political speech, it implemented a new policy requiring employees to only wear one of two approved face masks while working. The plaintiff, the union representing the employees, filed suit seeking an injunction against the employer for its policy.
As both parties agreed that the issue was of significant public concern, but the Port Authority used two arguments to defend its decision to restrict the wearing of masks bearing the statement “Black Lives Matter” and other political speech. First, it argued that the restriction was reasonable as it only applied to employees during the workday. Second, it argued that it had an interest in curtailing potentially disruptive speech in the workplace.
The employer’s first argument was easily disposed of, based on lengthy precedent that employees “may speak as a citizen on a matter of public concern at the workplace, and may speak as an employee away from the workplace.”
The employer’s second argument took a bit more time to debate, as it is possible for political speech to be so disruptive to a workplace that an employer may restrict its use in the workplace. However, to do so, an employer must “make a substantial showing that the speech is, in fact, likely to be disruptive before it may be punished.” In this case, the employer provided no evidence of complaints from bus riders or the public in general about drivers wearing “Black Lives Matter” masks while operating vehicles, or any evidence of decreased employee efficiency. Working against the employer was the fact that it allowed employees to wear the masks for several months without any signs of disruption to the efficiency of the workplace. The only evidence provided was “social-media chatter” where employees debated the appropriateness of political speech on their masks in the workplace.
The court found that the employer’s fear of employees starting to wear more controversial masks in response to the “Black Lives Matter” masks, was unfounded, based on the fact that there was no evidence any such masks were ever worn by employees during the period of time that political masks were allowed. Putting it bluntly, the court stated it declined to “legitimize the erroneous, if increasingly endemic, view that mere exposure to differences of opinion is a harm to be feared or avoided.” With that, it granted the preliminary injunction against the employer’s policy. The case did not indicate whether any “White Lives Matters” masks were then worn by employees.
First Amendment issues are difficult to navigate for public employers, and they are not going anywhere. As different types of political statements become more prevalent, reflecting the tumultuous times in which we live, employers need to be prepared on how to respond. If you, or your organization, need assistance in creating a policy consistent with the First Amendment, or responding to employee free speech issues, contact Wiley Reber Law, for advice that works.