In the days leading up to the confirmation vote on Supreme Court Justice Kavanaugh, more than half of Americans said they had engaged in political discussions in the workplace about his confirmation battle, a recent online poll reported. The good news is more than three quarters of those conversations were characterized by participants as "civil" discussions. The not-so-good news is how many workplace conversations about his confirmation resulted in conflict, argument, or tears.
Now, with high-stakes mid-term elections less than a month away, the coming weeks are likely to see even more political discussion in the workplace. When these discussions raise personal or important issues for employees, even a small disagreement can quickly escalate, resulting in lost productivity, lower employee morale, and damaged workplace relationships. At a time where political speech appears more heated than ever, how can employers navigate their legal obligations with respect to protected speech while ensuring a productive and harmonious workforce?
Employers generally can limit political discussions that disrupt work, with some important caveats. Section 7 of the National Labor Relations Act (NLRA) – which applies to both unionized and non-unionized nonsupervisory employees in the private sector – provides that "[e]mployees shall have the right ... to engage in ... concerted activities for the purpose of ... mutual aid or protection." The U.S. Supreme Court has interpreted this provision to mean that employees may organize as a group to "improve their lot" outside of the employer-employee relationship. In recent years, the National Labor Relations Board (NLRB or Board) has closely scrutinized employer rules that would or could limit workplace speech. With respect to political discussion, this means that employers may not prohibit conversations relating to labor or working conditions, even if those conversations are couched in terms of politics or current events.
Even neutral workplace "civility" codes – which may require employees to refrain from embarrassing, hurtful, or insulting comments about co-workers – have at times proven to be problematic. In the past, the NLRB has construed ambiguous rules that limit speech against the employer, holding, for example, that a rule prohibiting conversation around "topics that may be considered objectionable or inflammatory, such as politics and religion" was unlawful, because discussions protected by Section 7, by their very nature, may be inflammatory.
More recent NLRB case law generally has looked more favorably at workplace civility codes. In The Boeing Co., 365 NLRB No. 154 (2017), the NLRB approved an employer's rule that promoted "harmonious interactions and relationships" and general civility in the workplace. As the Board explained, civility rules may provide "common sense" standards of conduct that are appropriately maintained in the workforce.1 In June 2018, the NLRB's General Counsel released a memorandum further explaining the contours of the Boeing decision with respect to workplace conduct rules and offering guidance and examples of lawful policies.2
This more favorable case law notwithstanding, it is important to remember that not all "neutral" workplace rules governing conduct or civility will pass NLRB muster. Rules that specifically ban concerted activity, or that are promulgated in response to protected concerted activity, will still be found to be unlawful. Moreover, even neutral conduct rules must be applied in a manner that does not run afoul of Section 7. The application of a facially neutral rule in a discriminatory manner, or against protected activity, will still be found unlawful.
In that light, as employers try to maintain civility and a respectful tone this political season, they will want to make certain that workplace civility policies are tailored to not infringe on core Section 7 rights. At the same time, employers will want to ensure that irrespective of the civility policies they have "on the books," these rules are applied in a fair and neutral manner that does not restrict NLRA-protected speech.
Footnotes
1 See Fred Miner, Enforcing Civility: The Board's New Boeing Standard Influences a Range of Policies Promoting Positive Workplaces for Employers and Employees, Littler Insight (June 19, 2018).
2 See Fred Miner, The NLRB Expands the Use of Confidentiality Rules in The Boeing Co., Littler Insight (July 2, 2018).
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