In recent weeks, the story of a New Jersey lawyer whose off-hours political activism was brought to the attention of her employer went viral because of the unusual way it happened: A congressman's letter flagged her as a "ringleader" of a group in New Jersey aimed at making him more accountable and accessible to his constituents. In a fundraising letter sent to a board member of the bank for which Saily Avelenda worked, Rep. Rodney Frelinghuysen (R-N.J.) attached an article that quoted her, warning in a handwritten postscript that a member of one of the groups challenging him worked in his bank.
But the story also raises questions about what rights employees have when it comes to off-duty political activity, particularly in an era of rising political engagement, growing hyper-polarization and increasing use of social media platforms such as Twitter or LinkedIn that easily connect workers with their employers. Though Avelenda was not disciplined or asked to resign, her boss did have her write a statement about her activities with the group, and she later decided to quit on her own, in part because of the pressure she felt from the episode.
"I was not using my employer's name anywhere," Avelenda said in an interview, noting she was careful to not even use pens with a company logo while she was working with the group. The bank, where she was an assistant general counsel, was also not named in media reports where she was quoted, but she believes her unusual name played a role in her being identified.
"I was stunned why I had to do anything." (A representative of Avelenda's employer, Lakeland Bank, did not return a phone message, but in a Facebook post, the bank said it "does not comment on the status of our current or former employees" and that its code of ethics allows that "each employee has the opportunity to support community activities or the political process in the manner that she or he desires.")
The rights employees hold depend greatly on the state -- or even the city or county -- where they live. Some states specifically bar companies from firing or disciplining employees for lawful off-hours conduct or protect certain political activities. Others don't have those protections: For instance, New Jersey, where Avelenda lived, is not among the states that protect employees for their off-duty political activity, said Debra Katz, a Washington-based lawyer who represents employees in discrimination suits. Nor are Virginia and Maryland, she said, though Howard and Prince George's counties have passed statutes similar to one in D.C., which does prohibit discrimination based on political party affiliation.
There is also no federal law that explicitly protects private-sector employees for off-duty political activism, though the National Labor Relations Act gives protection for union-related political activity, Katz says. "Right now, it's so hotly polarized, and social media is creating trails of everything everybody does," Katz said. "I think people would be aghast to know that those rights are not guaranteed in most states."
Another common misunderstanding is whether freedom of speech protections offer job protections for nongovernment workers. The First Amendment restricts the government from discriminating against public employees for political speech and people generally from state censorship or punitive action by the state. "But if it's a private employer, there's no particular freedom of speech," said Lindsay Burke, vice chair of the employment law practice at Covington & Burling. "There are no particular First Amendment rights with regard to your work" for private employers, she says.
Eugene Volokh, a law professor and free speech expert who also writes as a contributor for The Washington Post, says it's "fair to say there are about a dozen states in which there is considerable protection for employees, at least off-duty, and maybe sometimes on duty, for political and ideological expression and activism." States such as North Dakota, Colorado, New York and California have relatively broad prohibitions against taking action against employees who take part in lawful off-duty political activity, but there are still differences and exceptions for things related to business interests or job duties, such as journalists being prohibited from volunteering for political campaigns or taking part in political marches.
Another roughly dozen states protect certain kinds of activity related to the electoral process, Volokh says, such as signing a petition or making contributions to a political campaign, but these are narrower protections. States, he notes, are asking whether political activity should be treated "as things like appearance, or what college you went to, where basically we leave it to the employers' good sense in the marketplace to prevent discrimination, or do we treat it like race and religion and sex, [where] you can't discriminate on that even when you might have good business reasons," he said. "Some states take one view and some states take another."
Even where there are protections spelled out for workers, there is not always a lot of case law that helps define the ambiguous terms used in many states, such as what is meant by "political activity" or what might constitute an "essential business-related interest."
One reason there may not be many cases, Volokh says, could be that many employers simply "take a live-and-let-live attitude toward employees' politics," believing that interfering with employees' off-hours time would be bad for morale. In other words, just because some states lack protection doesn't mean many employers are necessarily acting on it.
Katz says lawyers she knows who represent management "feel they have to tread very carefully on monitoring social media," taking action only when people are doing things like violating trade secrets, confidentiality or actively disparaging their employer.
Other possible reasons there aren't many cases, Volokh says, is that the awards aren't always generous, creating little motivation to deal with the legal hassle, or that employees and employers may not be aware of the statutes. "A lot of these date back to the early 1900s," he said. And while employees' political activities may lead to some awkward working relationships, there are not always the kind of tangible actions -- a denied promotion, a termination -- that merit filing a suit.
Paula Brantner, a senior adviser to Workplace Fairness, a nonprofit focused on employee rights, says that she has typically seen only one or two of these kinds of cases stand out each election cycle, though she expects we could hear about them more often in the future. "A lot of people who haven’t been active before are newly energized, and there are a lot of groups forming around the country," she said. Plus, "with social media, one's personal views get amplified far more than they were in the past."