It seems like we live in a tinderbox. The combination of the upcoming presidential election, emerging debates about social justice issues, and the ongoing pandemic seems to have created the perfect storm. When filtered into a diverse workplace, passionate opposing political viewpoints can harm productivity and morale and even create liability issues. Sometimes, for instance, political discussions can morph into something that creates a hostile work environment for a member of a protected class.
Keep in mind the First Amendment right to "free speech" doesn't prevent private employers from restricting speech. Let's discuss what private employers can and should do to regulate political communications.
Can management encourage employees to vote a certain way?
If employees are nonexempt under the Fair Labor Standards Act (FLSA), employers may not influence their actions in elections. The restriction includes encouraging (or discouraging) them to vote or to register to vote, back a particular candidate, run for political office, or support a referendum.
Can management ban political discussions?
Yes, with a couple of caveats. First, any ban shouldn't extend to activities protected under the National Labor Relations Act (NLRA). In particular, the NLRA allows nonsupervisory employees to communicate about the terms and conditions of employment, such as wages and hours. It's against the law to prohibit employees from discussing political issues if the talk touches on the terms and conditions of employment.
Second, it could be problematic to attempt to extend a ban to off-duty conduct. Any restriction on off-duty conduct must be narrowly tailored to serve a legitimate interest, which could include preserving business relationships that could be disrupted by the employee's activity. Or suppose an employee is expressing extremist political views on social media, and she may be viewed as affiliated with the employer. You may have grounds to step in and restrict that kind of behavior.
Can management ban the display of political views?
Again, the answer is yes with the same caveats mentioned above. Thus, you can ban badges, buttons, political statements on t-shirts, and similar displays so long as they don't relate to NLRA-protected activity, such as promoting unionization. You shouldn't ban bumper stickers on employees' cars and other displays outside of the workplace in the absence of a legitimate business reason.
Should management implement a formal policy?
This is debatable. Personally, I think businesses should endeavor to create a culture of respect and civility in the absence of a formal policy, which should be implemented only as a last resort. My preference would be to have informal discussions with employees to encourage them to exercise good judgment and common sense. For instance, there's a big difference between respectfully expressing personal beliefs and attacking the ideas of others. I know, I know-it's unrealistic to expect all employees to use good judgment.
It's often a good idea to have a nonsolicitation policy that extends to political campaigning. The policy should be neutral (i.e., it doesn't forbid campaigning for only a certain political party) and limited to work hours. It's also a good idea to restrict employees from using company property (e.g., computers) to express their political beliefs.
Further, supervisors and other members of management should be counseled to avoid political discussions with rank-and-file employees. Suppose a manager frequently voices his support for a strict anti-immigration policy. An employee could claim such statements demonstrate a bias against certain nationalities.
Any formal policy should allow conduct protected by the NLRA. Be very careful about enforcement. For instance, employers can regulate discussions about feminism or "Black Lives Matter" (BLM). On the other hand, if management doesn't enforce a restriction on the discussions evenhandedly, it could be accused of sex or race discrimination. Further, if the employee's communications about feminism or BLM could be construed as extending to a complaint about workplace conditions, enforcing a restriction could be deemed unlawful retaliation under Title VII of the Civil Rights Act of 1964.
Must you accommodate an employee's religion by allowing her to advocate for certain pro-life candidates? Probably not if her activity offends coworkers and hurts morale. In situations when the line may be gray, it's best to obtain legal counsel before taking action.
THIS ARTICLE ALSO APPEARED IN HRLAWS.COM'S TENNESSEE EMPLOYMENT LAW LETTER.
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