How should employers handle political speech at work?

It can be hard in any workplace to stay silent about politics. Remnants of the campaigns trickle into our day-to-day life. As an employer, recognize that you walk a fine line between allowing your employees freedom of expression and managing a potential source of conflict. If you are concerned that political discussions are getting out of hand, manage the potential conflict before it escalates. In order to address political discussion in the workplace, employers should consider a few key concepts BLR’s, Susan Schoenfeld, points out below.

What can an employer do when political discussions overflow into the workplace. Political speech can cause workplace conflict between employees. As a result, employers may be forced to address the issue of political speech head on. But they need to be aware of several considerations, including free speech and union rights. In this article, BLR Senior Legal Editor Susan Schoenfeld provides do’s and don’ts for managing political speech in the workplace.

As we approach Election Day, the media is full of stories about political conflict, differing opinions on the economy, the size of federal government and its involvement in business and the private lives of American citizens. But most often the subject of discussion is which candidate or candidates should be elected to take these problems on. So, it is only natural that the conversation spills over into the workplace. Reasoned political discussion can blossom into disputes and strong emotions can interfere with good working relationships. As a result, employers may be forced to address the issue of political speech head on.

In order to address the issue of political speech in the workplace, employers should consider a few key concepts, including:

The First Amendment to the U.S. Constitution grants the right to free speech, also encompassing political speech. The First Amendment applies only to state action—action taken by federal, state or local governments. These “protections” do not apply in the private workplace. The right to exercise political speech in the workplace can be limited without violating the First Amendment. However, there are limits.

Some state laws also protect an employee’s rights to engage in political activities outside of the workplace.

Today we will discuss how employers can regulate political activity in the workplace by using policies and the issues employers should consider when doing so.

Generally, there are two types of solicitation: union solicitation and all others, including, political solicitation and charitable solicitation. Solicitation can be a request for money but may also include handing out informational pamphlets, or putting up posters espousing a certain political belief.

Employers may prohibit employees or others from solicitation outside of the union context. Prohibitions are usually included in an employee handbook or posted rules and of course, rules against solicitation must be uniformly enforced.

Now, regarding union solicitation, the National Labor Relations Act ( NLRA ) does not regulate political activity, but it does give employees the right to participate in concerted activity (including speech) in organizing for what the NLRA calls employees’ “mutual aid and protection.” So, for example, the NLRA empowers employees to wear union-related shirts, buttons, to distribute written materials regarding unions and the like in the workplace, as long as no solicitation occurs during working hours.

Because the NLRA protects union-related activities (but not political speech), employers must take great care to distinguish the two when establishing a non-solicitation policy.

So, when making a policy to regulate political speech and solicitation, consider the following:

  • If you have a nonsolicitation policy that is neutrally enforced, you can refuse to let employees distribute or post political flyers at work.
  • You may want to remind employees of your policy in the weeks leading up to Election Day.
  • If an employer prohibits wearing political buttons or posting political posters, the company should be certain that the prohibition is followed absolutely.
  • You can also ban political slogan buttons or T-shirts as part of your dress code policy, particularly for employees who come into contact with clients or customers.
  • If anyone, including the company president, wears a political election button, the ban loses its force, and an employee disciplined for violating the policy may have a claim for wrongful discipline or discharge, or even coercion, under state law.
  • But remember any embargo on buttons may not extend to union buttons worn during a union organization or election as this is protected under the National Labor Relations Act, but more about that later.

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.

As I mentioned earlier, many states do not allow employers to discipline or discriminate against employees because of what they do outside of work. Among other things, the law protects employee’s political activities, such as running for office or fund raising. Again, this means activity that occurs off the job.

Employers should keep in mind that if they want to constrain employee behavior regarding politics, it is the behavior—and not the beliefs or outside involvement—that is to be limited.

A final word – on employer endorsements of political candidates – If an employer endorses a particular candidate, party, or platform, it runs the risk of alienating some employees—and customers—so it may not be the most expedient course. The manner followed by most companies is to avoid political comment, other than a statement to employees encouraging them to be socially responsible and vote.

 

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