The 2016 election cycle is in full-swing, and everybody has an opinion. Thanks to the 24-hour news cycle, voters are ever more aware of the triumphs and follies of each candidate, so it’s only natural that employees will want to discuss the latest controversy with their supervisors, subordinates, and peers.
Political discourse is an important aspect of our democracy, but such discourse in the workplace poses some risk, legal and otherwise. Political discussions in the workplace can diminish employee productivity and cause friction between employees, and it is reasonable for employers to minimize these negative effects. Here are a few things employers should remember to navigate this rocky election period smoothly.
1. Tread Carefully on Policies Restricting Employee Political Speech
Although private-sector employees do not enjoy a constitutional right to talk about politics at work, employers should still think twice before enacting a policy restricting employee political speech. The National Labor Relations Act (NLRA) already protects certain kind of employee speech, like political posters or buttons, and in the event of doubt, the current National Labor Relations Board would likely err in favor of protecting political speech that could be construed as pro-labor. For that reason, it is critical that any existing policies restricting employee political speech be neutrally enforced. For example, employers should not discipline employees for using work email to solicit support for a pro-union candidate while permitting similar messages for a more conservative opponent.
Employers may have an existing policy that prohibits posting or displaying all non business-related flyers, posters, or buttons, and such policies are likely permissible so long as they are enforced consistently. However, if exceptions to the policy are frequently granted, or if no such policy currently exists, consider the risks in maintaining or creating such a policy.
2. Neutrality and Consistency is Key
Instead of specifically restricting employee political speech, it is a safer bet to use existing, neutral policies unrelated to politics. For example, anti-harassment, equal employment opportunity, and workplace violence policies often cover most of the potential employment pitfalls that the election season creates. Again, these policies should be consistently and neutrally enforced.
3. Supervisors Should Encourage Participation, Not People
Supervisors and managers should not push their political agenda on subordinates. Employers can find themselves in legal trouble for spreading political propaganda, especially if it relates to employment rights. Thanks to the Supreme Court’s Citizens United ruling, it is technically legal in most states to try to influence private sector employees’ political preferences (though some states do explicitly prohibit discrimination against employees due to political beliefs). However, such conduct should be discouraged. If employees believe they will be subject to discipline or retaliation for acting against their employer’s political recommendations, the employer could be subjected to a claim that it violated the NLRA.
On the other hand, employers may encourage participation in the political process. Many states require employers to give time off to vote, but employers should consider doing so even if their state does not have such a law.
Fortunately for employers, the 2016 election cycle will soon come to a close. However, these pitfalls and considerations will remain even after the votes have been tallied and the winners announced.