With the polarization and passion involved in this presidential election season, people everywhere are expressing their opinions and advocating for their favored candidates in both national and local elections. The pursuit of social justice, the imminent presidential election and the passing of Justice Ruth Bader Ginsberg are major political and social events that will spark debate. Sometimes however even the most well-intentioned social or political statements at the workplace can provoke and alienate others or can at least create tension and distract your employees. These discussions often happen in the privacy of one’s own den at home, but when they happen at work, the employer may have a problem. Employers however do not have to surrender or lose control of their workplace or the productivity of their workers due to the political expressions of their employees. Employers should reduce the risk of employee claims and maintain employees’ productivity through lawfully-composed and evenhandedly-enforced employee policies.
The U.S. Constitution does not limit the authority of private employers to regulate the speech of employees at work. Nor does the Constitution provide employees of a private employer with a right to express their political opinions at work. On another day, we may address the differences in the boundaries for a public employer, but the focus of this piece is on private employers where there is no general right of free speech when employees report to work. Employees, as citizens of the U.S., have the rights of all citizens to express themselves in a public forum, but they have no such rights when they are at work.
Many employers have policies providing guidelines or restrictions on the expressions of political views by employees at work. The common, even primary, motivation of such policies is to avoid a hostile workplace for employees and avoid claims of a hostile work environment or unlawful discrimination. Political topics often revolve around issues of race, gender, immigration, religion, family values and many other subjects. When such expressions are unlimited at work and an employee feels victimized by a co-worker’s statements, a complaint may be forthcoming. Then, the outcome of the investigation of the complaint can set the table for a complaint of discrimination or unlawful retaliation. For example, employees may wear candidate buttons or have political, cultural, or social justice slogans or imagery on their lunchbox. Then, a co-worker may complain about the statements as racist/sexist/ageist political expressions. When the investigation of the complaint concludes that the wearing of such symbols was not against the law or any company policy, the employee who made the rejected complaint will likely allege discrimination or retaliation if they are subject to discipline later on. Therefore, many employers simply choose to avoid such conflict and the risks and potential liabilities by prohibiting any politics at work.
We are all conscious of some legal limitations on the content of such workplace policies. The National Labor Relations Act (“NLRA”) restricts employers in the prevention of workers’ expressions and communications about hours, wages, benefits and/or the other terms or conditions of employment during non-work times in non-work areas. The limitations imposed by the NLRA apply both to union and non-union employees. When a worker communicates in an appropriate manner and does not interfere with production activities of the business, he or she is engaging in “protected concerted activity” when the opinions are about terms or conditions of employment. When workers’ statements are reasonably made to improve the working conditions of themselves and other workers, their expressions are protected. In addition to the NLRA, many states have laws that protect the citizens of that state in expressing political views at work. These state laws contain labels like “off-duty behavior,” “free speech,” and “political activity” and provide protections not afforded to workers by the laws in other states or even by federal law. As a result, all employers, but especially multi-state employers, should develop policies that account for the variations in state law.
Finally, there is a misconception that employees have a legal right to wear political buttons and distribute election materials even at the office or plant. While we must be cognizant of compliance with the NLRA, various state laws and the federal or state discrimination laws, employers generally have the legal authority to prohibit employees, while at work, from a) using company computers to express their thoughts on social media, b) wearing shirts, buttons or other articles advocating for political candidates or causes, c) soliciting financial contributions for political candidates or issues; d) disseminating political materials around the company offices, and e) displaying issue-oriented or campaign signs, symbols or literature. The application of such rules requires sensitivity to the various legal boundaries, but such rules may still have value in the workplace.
Employers should consider the circumstances of their own workplace and whether the election season presents risks for lost productivity, workplace conflict, and/or complaints of discrimination, harassment and retaliation. If these circumstances may develop, it could be time to provide guidance to your workers through written policies, and of course the uniform application of the policies.
Shareholder David Smith will participate in an upcoming national webinar on politics in the workplace presented by the Employment Law Alliance (ELA) during the week of October 12, 2020. Event details will be announced soon and can be found here.
Please reach out to your contacts in the Firm’s Labor and Employment Practice if you have any questions concerning your employment policies and obligations.