With the new year comes a new Congress, an ongoing government shutdown and rumblings of the first campaign announcements for 2020. With more voters participating in last year’s election than ever before, employers should be prepared to handle issues arising from employees’ political speech and conduct. Here’s a few misconceptions and policies that may help your company.
Misconception 1: Employees have a right to talk “politics” at work
Employees, as well as many employers, commonly but mistakenly believe that the First Amendment to the U.S. Constitution guarantees “freedom of speech” at work. In fact, the First Amendment applies only to government action and neither limits the rights of private employers to regulate employees’ communications nor provides any constitutional right for those workers to express thoughts or opinions at work. As a result, there is no constitutionally protected right of “free speech” in the offices and factories of private employers. Although employees may be entitled to express their views freely on their own time or on a soapbox in the park, they have no such wide-ranging constitutional rights at work.
Many employers do have policies limiting the discussion of political candidates and issues at work because of the risks of unlimited “free speech” in the workplace. For example, although there is no general federal law prohibiting employment discrimination on the basis of political affiliation or actions, sometimes seemingly neutral conversations about “politics” can lead to claims of employer discrimination, harassment or retaliation violating federal or state discrimination laws.
Workplace debates about a particular candidate’s fitness for office often include mention of genders, races or religions or their views on hot-button social issues such as abortion, “family values,” immigration and healthcare, which often are polarizing issues on which there are strong and opposing views among employees of different genders, religions and national origins. The potential for heated disagreements – and inflammatory, impulsive, ill-advised comments – is obvious. Unfortunately, such comments sometimes result in claims of discrimination or retaliation in which it is alleged that “my supervisor is biased as shown by his comments” or “the company punished me because I disagreed with my boss.” It is understandable, therefore, why many employers simply elect to minimize such controversies by prohibiting all “politics” at work.
First, laws in some states provide protections for political activities. For example, several states have “free speech,” “political activity” or “off-duty conduct” laws that give employees rights not provided by federal law or the laws of other states. Laws vary widely in scope and content; therefore, employers – particularly multistate employers – must carefully craft their policies.
Second, the National Labor Relations Act (NLRA) restricts an employer’s right to limit non-supervisory employees’ communications about wages, hours and other terms or conditions of employment. These restrictions may apply not only when the protected communications occur in the workplace during working times but also when they occur outside the workplace during non-working times. In addition, the NLRA restrictions protect non-union employees as well as union-represented employees.
Because the NLRA’s protections are limited to political topics with a nexus to specific employment-related issues, employers lawfully may restrict workplace communications and activities that are purely political in nature. This would include, for example, communications generally touting a political party or candidate; displaying or distributing a “Vote for Smith” poster or campaign button; and wearing a T-shirt that seeks support for a proposed law to increase the speed limit. Although those communications and activities clearly are political in nature, they lack the connection to employment-related issues required to bring them within the scope of the NLRA’s protections.
Misconception 2: Employees must always be allowed to display and distribute political materials in the workplace
Employers generally have the right to adopt and enforce non-discriminatory rules prohibiting non-work-related activities in their workplaces, including “purely political” activities. For example, employers may ban employees from displaying or distributing materials that are purely political in nature; soliciting co-workers or customers to support purely political causes; using the employer’s computer and email systems to engage in purely political communications; or wearing buttons, shirts or other items of clothing with purely political messages. Such activities are not protected by the NLRA. In addition, employees who engage in such activities in violation of the employer’s published policies may be lawfully disciplined or discharged.
However, as noted above, political activities with a sufficient connection to employment-related issues may be protected by the NLRA. Therefore, any restrictions on such activities must comply with rules developed by the NLRB for such statutorily protected activities.
What should an employer do?
Several “next steps” exist for employers concerned about potentially work-disrupting, productivity-sucking, fury-inducing “politics in the workplace.”
Prepare and implement a strong “no political activity” policy that has appropriate carve-outs for communications and activities protected by the NLRA or applicable state laws. Such carefully drafted policies not only are permitted but are considered an employer “best practice.” An absolute ban on political communications and activities would be both impractical and unlawful under the NLRA.
Employers should be prepared to promptly and effectively address violent, substantially disruptive, unlawful and other political communications and activities that fall outside the scope of the NLRA’s protection.
Employers may wish to discourage supervisors from having political discussions with subordinates in order to minimize potential claims of discrimination, harassment or bullying. As noted above, supervisors are not protected by the NLRA. However, any such policy also must be tailored to comply with applicable state law.
Employers should periodically remind employees – perhaps by redistribution of the relevant policies – that the company insists on respectful treatment of all personnel, does not tolerate discrimination, harassment or retaliation, limits employees’ access to and use of social media, and will investigate employee complaints of mistreatment.
Finally, employers must enforce “political activity” policies even-handedly. If a violation is suspected or a complaint is made, a careful investigation should be conducted and discipline issued as appropriate. “Even-handed” enforcement means not only consistent enforcement among all employees regardless of political affiliation or opinion but also consistency as to subject matter. This means, for example, enforcing facially lawful “no solicitation” and “no distribution” rules as to both protected political solicitations and distributions as well as other types of workplace solicitations and distributions.
Employers need not lose control of their workplaces during these “hot” political times. A carefully crafted and uniformly enforced policy that limits political activities and “free speech” will lower the risk of employee claims while increasing worker productivity.