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► FAQ: How Do We Handle Talking Politics At Work?

Question: How do you handle politics in the workplace? We’ve had an employee post campaign stickers and another employee taking them down.

Answer: Employers have the responsibility to enforce workplace rules, promote cooperation, insist on civility and respect, and, most of all, remind employees they are on one team, at least in the workplace. When elections are around the corner, your employees may be engaging in anything from a mild-mannered discussion of political opinion to a virtual maelstrom of angry diatribes.

Certainly, employers should respect the political perspectives and opinions of their employees. An outright ban on political discussion in the workplace may be unwarranted as well as impractical in most businesses. Doing so would likely lead to employee resentment over the level of “control” exercised by the employer. At the same time, however, divisive or even merely time-consuming political debate can eat up employees’ productivity, damage interoffice relationships, and raise accusations of political persecution and even a hostile work environment.

No Protections For Political Beliefs

Political party affiliation and political speech generally aren’t protected in the workplace like gender, race, color, age, national origin, religion, disability, sexual orientation, gender identity, etc. Free speech, however, still has some protections. Actions employers can take will depend on, for example, whether an employer is a public or private employer, which state the employee works in, and whether the workplace is union or nonunion. Other relevant considerations include company policies and practices, state or local laws, and the National Labor Relations Act (NLRA).

Contrary to popular belief, there is no right to “free speech” in private workplaces under the U.S. Constitution. Even the First Amendment doesn’t protect political speech at work. Employers generally have the authority to control how employees express themselves on the job, and may discipline and terminate those who act unprofessionally or create disturbances—even if the expression is political in nature.

Given politics’ ability to detract from teamwork and collegiality, employers may wonder whether they could lawfully discipline or discharge an employee for various actions. The answer in each and any situation is, “It depends”.

Legal Considerations to Keep in Mind

Many states have laws protecting employees from discipline, termination, or other penalties based on their exercise of federal or state constitutional free-speech rights, but the protections aren’t comprehensive.

Conscientious employers will be mindful of some overarching legal considerations regarding employee speech:

Public-sector employers use a balancing test to determine whether an employee’s speech is protected. The test balances (1) the employee’s interests as a citizen versus (2) the state’s interest in promoting the efficiency of the public services it performs through its workers. Relevant considerations for public employers include whether the speech relates to a matter of public concern, has an effect on the public and the public entity, and was made pursuant to the employee’s official duties.

Private-sector employers aren’t governed by any First Amendment “free speech” right to political expression in the private workplace. Some states and local governments do have laws protecting employees from adverse employment actions because of their political speech or activities outside of the workplace. The scope of the protections varies greatly among states’ laws, so consult with local counsel before taking action.

The NLRA provides additional protections for certain speech. The Act gives employees at union and nonunion workplaces the right to help one another by sharing information, signing petitions, and seeking to improve working conditions in a variety of ways. It doesn’t specifically protect political speech, but speech and related action are protected if they are both (1) concerted (i.e., a group or individual expressing concerns on behalf of similarly situated employees) and (2) related to a work issue. The scope of the protections also varies greatly by state, so consult with local counsel before taking action.

Political speech in the workplace also may raise issues related to antidiscrimination. Under Title VII of the Civil Rights Act of 1964 and related state statutes, all employees have the right to be free from discrimination or harassment based on their membership in protected categories. The protections apply to behavior both in and out of work, including employee gatherings (whether sponsored by the company or not) and social media, and employers must promptly and appropriately investigate all discrimination or harassment allegations.

Polarizing Talk’s Impact on Workplace Practices and Policies

Political discussions at work are rife with potential problems and concerns for HR. Employee one-on-one discussions can lead to potential disagreements and lack of cooperation. Group discussions can turn into a source of distraction, hard feelings, and interference with work. Politics in e-mail messages on company systems may lead to inconsistent applications of personnel policies. Materials on desks and office walls can be controversial and disruptive. Employees could request leave in support of a candidate or political party.

The effects of political speech aren’t confined to employee relations and work ethic. If political activity occurs in the work area, the result may be customer complaints or an impact on business. Employee activity, such as distributing political materials, may appear to reflect an endorsement by the employer. Political hats, buttons, or pins may be in conflict with company uniforms. In addition to being distracting, social media messaging may have brand implications.

Political speech potentially implicates many workplace policies, such as no-solicitation/no-distribution rules, access rules, appearance standards, and policies on social media and use of the employer’s computers and equipment. Also relevant are prohibitions against discrimination and harassment, rules on civility and disparagement, and concerns about whistleblowing and retaliation.

Discussions of hot-button issues can even have legal consequences. Conversations about gender or sexual orientation could lead to sexual harassment allegations, and debates about national origin might lead to real concerns regarding immigration.

Best Practices for Employers

Certain practices can help employers to create cooperative and civil workplaces while still complying with the legal protections for employee speech. Train supervisors and managers on the policy, including steps to take if they observe inappropriate conduct and avoiding engaging in inappropriate conduct themselves (e.g., favoritism toward certain employees based on political affiliation or views). Don’t overreact to short discussions among employees, but don’t permit significant distractions during working time. Use progressive steps (beginning with a simple reminder or coaching) to enforce company policy.

Here are a few tips on how an employer can ensure that political activities and discussions are limited and appropriately monitored in the workplace:

  1. Limit employee political activities that have an impact on the workplace. The employer can do this by implementing rules prohibiting various activities, such as political campaigning, during business hours. Also, enforce dress code and attendance policies, consistent with past practice (e.g., don’t allow workers to wear campaign T-shirts or buttons). Doing so could spark political arguments or complaints that the employer is pandering to one candidate or another.
     
  2. Adopt and enforce no-solicitation and no-distribution rules and don’t allow third-party political activity on the premises. These rules limit workers’ solicitation of support for and distribution of literature about various types of non-work activities, so they are certain to apply to political campaigning. Please Note: Employers should seek legal counsel to draw up the appropriate rules.
     
  3. Adopt and enforce policies dealing with workplace technology, including the restriction of e-mail to work-related activities. That way, the employer can effectively ban political campaigning via company e-mail.
     
  4. Screen management personnel to make sure they don’t advocate or degrade any political candidate or political position. During this especially emotional political season, employers should communicate with managing employees at all levels to ensure they are controlling and reporting any disruptive political activities or discussions.
     
  5. Remind employees of policies regulating Internet and e-mail usage in the workplace, but be mindful of the NLRA. (For example, an electronic communications or social media policy would be illegal if it prohibits an employee from criticizing, disparaging, or making false, offensive, injurious, or negative statements about the employer or supervisor electronically, including on social media.)
     

Note: It is especially important for employers to make sure that their employees aren’t being harassed (or harassing others) for their political beliefs. The danger of a lawsuit developing out of such a situation is a very real possibility. Investigate any employee complaints of harassment promptly and appropriately, similar to other investigations of reported misconduct, and don’t hesitate to reach out to local counsel if a situation arises.

Bottom Line

Political discussion, if carried out in a respectful and thoughtful manner, can enliven the workplace and promote diverse thinking. Unfortunately, it more often leads to emotionally charged language, bruised feelings, distractions from the tasks at hand, and potential lawsuits. At the very least, consider taking the steps to curtail political advocacy at your company and to ensure that your employees engage in respectful and non-disruptive political discussions.

Remember, one loose cannon can prompt an expensive lawsuit, so be sure and consult with your local labor law attorney before drafting and enforcing any new rules and/or before taking adverse action against an employee in such cases.

By Jeanna Crocker, J.D. Ms. Crocker is a Senior Legal Content Specialist with BLR/HR Hero.

[5/2022]

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