Last week, Representative James White, a Republican representing District 19 (Hardin, Jasper, Newton, Polk, and Tyler Counties), proposed a new state law that would protect Texas workers from adverse actions for expressing their political opinions and views away from the job.  The key provision of the proposed legislation defines “political beliefs” to include “only” those beliefs of an individual “expressed outside the workplace and outside the course and scope of the individual’s employment.”  The proposed legislation, if passed, would modify the Texas Labor Code by making “political beliefs” a protected class, alongside “race, color, disability, religion, sex, national origin, or age.”  Tex. Lab. Code § 21.051.  You may read the proposed text of the legislation here.

Previously on the Work Knowledge Blog, we outlined some issues for employers to consider when it comes to politics in the workplace, especially during or immediately following election years.  Here are links to those posts:

(1) Voting Leave Rights

(2) Free Speech in the Workplace

(3) Drafting and Implementing Employment Policies

(4) Mistakes to Avoid in Employee Handbooks

One of the key things we identified in those prior posts was that the First Amendment’s right of free speech does not apply to private employers and that employers in Texas should protect their employees from unlawful harassment, even if it occurs on social media.  Indeed, even the Texas Workforce Commission recognizes that “courts have long held employers responsible if they fail to take effective action with respect to employees who commit illegal harassment against co-workers, whether the harassment occurs on- or off-duty.”  Tex. Workforce Comm’n., Social Media Issues, available here (emphasis added).  Thus, employers might have some liability in Texas if they do nothing about an employee who uses their “political beliefs” to harass a coworker (e.g., a Caucasian worker harasses a Hispanic coworker regarding Trump’s proposal to build a border wall).

On its face, the proposed legislation does not impede on an employer’s ability to take adverse actions against employees who harass their coworkers with their political beliefs.  But it would seem to pit one worker’s right to express a “political belief” to a coworker outside of work hours (e.g., on a social media forum) against another worker’s right to be free from harassment.  The proposed legislation therefore may create a number of issues for employers, if it passes, due to the competing interests of their employees.

That said, a couple of things about the proposed legislation are clear.  If it passes, and therefore makes “political beliefs” a protected class in Texas, the primary changes employers would need to make are twofold.  First, employers would need to review and/or revise their employment policies and handbooks to ensure they have included the correct statement of current Texas law regarding discrimination, harassment, and retaliation.  Second, employers would need to ensure that future adverse actions against employees are unrelated to their “political beliefs” as that phrase is defined in the proposed legislation and as affected by other laws and employee rights.

If you have any questions about this proposed legislation or about your obligations as a Texas employer, call an attorney with an appropriate employment law background.