With the presidential election less than a month away, it is more important than ever that employers proactively manage their work environment to protect against the potential pitfalls that can arise when political discussions occur in the workplace. The new remote working environment in which many employers find themselves only adds a layer of complexity to this challenge. We discuss this difficult issue further below.
General Legal Landscape Regarding Political Speech in the Workplace
As our colleague Jen Rubin wrote earlier this year, the rights of free speech and assembly under the First and Fourteenth Amendments only restrict governmental action. Therefore, private employers generally can regulate or restrict an employee's workplace political speech, unless (i) the employer is subject to a law that specifically protects employees against discrimination because of political speech, or (ii) the employees are subject to a collective bargaining agreement that does the same. (The story is quite different for public sector workers, but we do not address them here.)
While there are no federal laws that explicitly protect private sector employees from discrimination or retaliation because of their political activities, affiliations, or expressions, there are various federal laws that protect certain types of speech that may cross over into political territory. For example, the National Labor Relations Act protects employee speech in connection with collective action concerning wages and working conditions. Other statutes, such as OSHA, Title VII, and the ADA protect employee "speech" that is undertaken to report discrimination, harassment, or health and safety violations in the workplace. Those same statutes also render employee speech unlawful when it constitutes harassment or discrimination.
Further, many employees work in state and local jurisdictions that provide at least some political speech protections - typically in the form of protecting an employee's political activities, expressions and/or affiliations. Because those laws come in all shapes and sizes, employers must proceed carefully before banning political speech or disciplining an employee for engaging in political speech. For example, Washington D.C.'s human rights law limits its reach to actual or perceived political affiliations only, while Seattle's law is a bit broader, extending to one's "political ideology." Wisconsin law protects those declining to attend a meeting or participate in any communication about political matters. Likewise, in New Jersey, an employer cannot require employees to take part in employer-sponsored meetings about the employer's political opinions or positions.
More often than not, these laws protect workers from adverse actions because of their political activities outside instead of inside the workplace. For example, with limited exceptions, Colorado law prohibits employers from firing someone because of their lawful off-duty activities, including engaging in political speech, and it also prohibits employers from making any rule prohibiting employees from engaging or participating in politics or running for office. New York law protects employees engaging in certain "political activities" outside the workplace during off hours, but it contains an exception where the employee's activities would create a "material conflict of interest related to the employer's trade secrets, proprietary information or other proprietary or business interest." And Connecticut law prohibits employers from taking adverse action against employees who speak about matters of public concern unless that speech substantially interferes with an employee's job or working relationship with the employer.
In general then, many employers have significant flexibility in determining whether and to what extent they will permit, restrict or otherwise regulate political discussions in their workplace.
Potential Employer Responses to Political Speech in the Workplace
Despite this flexibility, as we near the election and its aftermath, employers should be laser-focused on the level of political discourse they will tolerate in the workplace. Questions that must be asked include: (i) whether the company wants employees to keep their political opinions to themselves; (ii) whether it wants to encourage robust debate; or (iii) whether a middle ground better suits the company's culture. Companies must also consider whether they are prohibited from curbing political discussions in any way.
Employers should answer these questions carefully. We note though that limiting political discussions in the workplace, particularly in the time of COVID-19, Black Lives Matter, the upcoming presidential election, and various other hotly-debated issues (e.g., the upcoming Supreme Court confirmation process), may not be realistic for many employers. At the same time, the potential exposure points are real. Politically-related conversations not only invoke passionate feelings on both sides of the aisle on issues ostensibly about public policy, but they often touch on issues that may relate to someone's membership in a protected class, leaving employers vulnerable to discrimination and other claims.
Absent a total prohibition on political discussions in the workplace, employers pursuing a more nuanced approach should consider doing the following (while accounting for the various legal limitations discussed above):
- Take the opportunity to communicate
your specific policy or other guidelines to employees, including
- Ensuring that your expectations are clear, including that you expect employees to act in a civil and respectful manner towards each other at all times.
- Identifying any issues that are "off-limits"; particularly those that may cause a conflict of interest with the business.
- Making appropriate references to handbook conduct policies, including policies regarding anti-discrimination/harassment, complaint reporting, non-solicitation/distribution and social media and electronic use policies. Employees should also understand that they may be subject to discipline for failing to meet your standards of conduct regarding political discourse.
- Distributing (where appropriate) an impartial election-focused one-pager with helpful talking points. For example, you may remind employees that a politically-laced, yet well-intentioned conversation, even between the friendliest of co-workers, can quickly turn contentious, and thus, even though the company has not banned such conversations, you are asking employees to think about whether and how to engage in such conversations, including that the employees must be respectful of and sensitive to others' beliefs and should not pressure anyone into discussing politics at work. This communication also should remind your employees to utilize your complaint reporting mechanisms if a problem does arise from such a conversation.
- Remind employees that the rules are not different just because they are working from home and communicating electronically. In fact, it's even more important to engage in civil and respectful discourse when expression and tone are harder to discern over electronic means.
- Consider whether it's necessary to conduct workplace professionalism training seminars for your employees (or at least managers) to reduce the likelihood that a healthy debate will turn into a contentious or inappropriate one. (And now is a good time to do so anyway if you are in a state that requires annual harassment training.)
- Delineate specifically-prohibited
political activities in the workplace, including whether and when
an employee may or may not:
- use company computers to express the employee's political views on social media;
- wear shirts, buttons or other articles advocating for political candidates or political issues;
- solicit financial contributions for political candidates or issues;
- distribute political materials on company property, and
- display issue-oriented or campaign signs, symbols or literature.
Overall, employers should aim for outcomes where employees can engage in a dialogue about important issues, whether in person or electronically, while remaining productive, respectful of others' points of view, and aware of key discrimination and labor laws. Taking this approach should better ensure the creation of realistic workplace social conditions, maintain employee morale, and reduce exposure to a lawsuit.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.