As election time draws near, employers must be prepared to deal with numerous workplace issues that can arise from political discussions and campaigning in the workplace. With controversial issues such as race, immigration, family values, national security and the economy on the political forefront, friendly workplace banter can quickly devolve into contentious disputes. Employers need to be aware of their legal rights and obligations in addressing political discussions and activities in the workplace, as well as the practical impact of their actions.
As election time draws near, employers must be prepared to deal with numerous workplace issues that can arise from political discussions and campaigning in the workplace. With controversial issues such as race, immigration, family values, national security and the economy on the political forefront, friendly workplace banter can quickly devolve into contentious disputes. Employers need to be aware of their legal rights and obligations in addressing political discussions and activities in the workplace, as well as the practical impact of their actions.
While employees may believe they have a First Amendment right to free speech at work, the First Amendment only restricts government censorship of speech. Accordingly, the First Amendment does not apply to private employers' regulation of employees' speech and does not preclude private companies from regulating or banning political discussion entirely1. State and local laws may, however, protect political speech or activity. Employers should become familiar with the state and local laws pertaining to political activity to ensure their policies and actions comply with these laws.
Most employers find it impractical to ban completely all political discussion in the workplace. Additionally, such bans can have a detrimental impact on employee morale and may even raise issues under the National Labor Relations Act (NLRA)2. Instead, employers may want to consider asking employees not to discuss political topics in work areas and during work time.
When addressing the issue of political discussions in the workplace, employers should remind employees of the company's policies prohibiting harassment, discrimination and retaliation as well as the company's complaint procedures. Make sure employees understand that even conversations related to politics must comply with these policies – discussing politics isn't an excuse to harass or bully another employee. Additionally, employers should promptly investigate any complaint of political harassment or bullying in accordance with company policies and procedures and ensure that any discipline is imposed uniformly.
Employers should discourage supervisors and managers from discussing their political views with their subordinates, since this could make employees feel as if they are being pressured to agree with the supervisor3. Additionally, employees may rely on comments made during a political discussion as evidence of discrimination or harassment. For example, a female employee who claims she was denied a promotion because of her sex may argue that her supervisor's comment that he would never vote for a woman reflects his discriminatory animus. State and local laws may restrict an employer's ability to share its political views with employees. Employers should ensure their policies and practices comply with these laws.
Employers are entitled to enforce rules of conduct and to discipline employees whose actions disrupt the workplace, even if the actions are politically related. It is important to ensure, however, that any adverse actions focus on the employee's disruptive behavior, not the opinions expressed by the employee. It is also important to ensure that any discipline is imposed uniformly, without regard to categories protected by anti-discrimination laws, such as religion, race, sex, disability, age or national origin. Again, employers must also ensure that any discipline complies with applicable state and local laws.
Generally, employers can prohibit non-work related solicitations and the distribution of non-work related material in the workplace during working time. This applies to solicitations for support of political candidates and the distribution of political paraphernalia. To avoid unfair labor practice claims under the NLRA, no-solicitation/no-distribution policies must be properly drafted (that is, not overly broad) and uniformly enforced. This means employers cannot permit the distribution of political material while prohibiting the distribution of union-related material.
The National Labor Relations Board (NLRB)4 takes the position that some forms of political advocacy may be protected under the NLRA. In a Memorandum issued in 2008, the NLRB General Counsel stated that political activity related to employment concerns that occurs during non-work time and in non-work areas generally is protected if it does not disrupt the employer's work operations or interfere with the employer's ability to maintain discipline in its workplace. The General Counsel also stated, however, that political advocacy that occurs during work time is subject to restrictions imposed by lawful, neutrally-applied work rules.
Employers can implement dress codes that prohibit employees from displaying political items at work, such as hats, pins, t-shirts, etc., as long as such policies are uniformly enforced. Under the NLRA, however, employers generally cannot prohibit employees from displaying union-related material at work.5 Accordingly, while an employer may be able to prohibit an employee from wearing a "Vote for Obama" t-shirt, it generally cannot prohibit a t-shirt (or pin, button, hat, etc.) that says "IAM (or another union) Supports Obama."
Employers should reiterate that company resources, including computers, internet and e-mail should be used only for business purposes. Consider redistributing electronic communication policies to ensure employees understand these restrictions. Employers must ensure that these policies are applied uniformly; permitting the use of e-mail or other electronic resources for political campaigning while prohibiting such use for union-related purposes could violate the NLRA.
Although federal law does not require employers to permit employees to take time off from work to vote, most state laws provide some form of voting leave. Because voting leave laws vary by state, it is important for employers to review their state's voting leave laws and adjust their policies accordingly.
1 Government entities are subject to greater restriction than private employers. This article only addresses political discussions and campaigning in the private sector workplace.
2 Among other things, the NLRA protects employees' rights to engage in protected concerted activity.
3 Additionally, such discussions potentially could violate federal election laws.
4 This is the federal agency charged with enforcing the NLRA.
5 In limited situations, the Board may permit employers to enforce strict uniform requirements that prohibit the wearing of union insignia where employees have significant interaction with customers and the public; however, these policies must be enforced uniformly.