Every four years like clockwork, it happens: presidential politics becomes the focus of our national attention, seemingly dominating all aspects of our lives. The national conversation becomes one of campaign rhetoric, and anecdotal evidence suggests that it has only gotten more divisive. The conventional wisdom says that the two things one is never supposed to discuss at work are religion and politics, yet the political conversation can’t help but spill into the workplace, with the attendant potential for division and conflict. As an employer trying to foster productivity and keep the peace in the workplace, is there anything you can do? As it turns out, there’s quite a lot.
The First Amendment
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” U.S. Constitution, Amendment I.
It is intrinsic to the American experience to tout one’s freedom of expression, especially in the context of politics. After all, political expression was the near exact target of the Framers when they amended the U.S. Constitution to protect freedom of speech. That means that employers cannot infringe this speech, right? Wrong.
The First Amendment is a prohibition on restriction of free expression by government and quasi-government entities. These protections on free expression do not apply to private employers, and so therefore those employers are not prevented from regulating employee speech in the workplace by the First Amendment. The analysis doesn’t end there, however.
While political speech in the workplace is not protected by the Constitution, certain aspects of employee political speech may be protected by Section 7 of the National Labor Relations Act. Section 7 lists the rights of employees as they relate to activities in the workplace with the purpose of affecting employment conditions. Specifically, Section 7 allows employees to “engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”1 The NLRB has taken this to mean that employee speech with regard to conditions and terms of employment cannot be limited, and this obviously can have ramifications for employee political speech. Employers should be careful to delineate between policies regarding union/organizing labor and polices regarding other topics of employee speech.
Other state laws and federal regulations may apply, but the gist is that employers do have a generous ability to prevent political discussions in the workplace. There are important ideas to remember when applying such a policy, however. First, make sure that the policy does not limit employees in their speech concerning workplace conditions or political topics that could affect workplace conditions. In other words, distinguish between speech in the union and organized labor context and other speech. Second, make it clear that the policy is viewpoint-neutral – the policy should exist for the purpose of keeping the peace in the workplace, rather than attempting to stifle employee speech. Any band on political discussion, including the wearing of election paraphernalia, should apply across the board. Third, employers should also remind employees of policies concerning harassment and discrimination as well, as political discussions can also spiral into these areas. Finally, be cognizant of the fact that there is a difference between regulating employee speech in the workplace and attempting to censor or adversely affect an employee for political activity outside of the workplace. The latter is prohibited by Kentucky law. For more information on the regulation of employee speech in the workplace, contact the attorneys at McBrayer.