Over the next few weeks, millions of Americans will cast their votes, concluding what has been a particularly contentious election cycle. Until then, as Election Day approaches and employees’ political passions continue to rise, employers should be mindful of their rights and obligations when it comes to voting and politics in the workplace.
Dealing with Voting Leave
If you haven’t already done so, now is the time to review your policies concerning voting leave and to ensure they are compliant with applicable state law. State voting leave laws differ by the amount of leave required, whether and how much of the leave must be paid, and the amount of notice employees must provide in advance of taking voting leave. Several states — including California and New York — even require employers to post a notice of employees’ right to take leave to vote at least 10 days before Election Day (by Friday, October 28).
Addressing Employee Political Activity
Education of managers and supervisors is critical. Although employers generally have wide latitude to limit political activities and expression in the workplace, there are some legal limits on what actions you may take toward employees with respect to their political activities. Review with managers and supervisors all applicable state and local laws. For example:
- In the District of Columbia, New York, South Carolina, and Washington, employers are prohibited from discriminating against employees on the basis of political affiliation or activity
- Several states’ laws, such as Arizona, Nevada, West Virginia, and Tennessee, prohibit retaliatory termination or other discrimination against employees for exercising their voting rights
- Under Louisiana’s law on political activities, employers cannot forbid or prevent employees from participating in politics
- Under Oregon and Wisconsin law, employers may not take adverse employment action against employees for refusing to attend a meeting or to participate in communications about political matters
The lines between political issues and issues related to race, gender, religion, and the like are often blurred. Be mindful — and educate your managers and supervisors to be mindful — of evenly applying policies concerning political expression in the workplace where such other protected characteristics come into play.
Likewise, tread carefully when it appears that the political views employees advocate are directly related to employment concerns or problems in the workplace. Such political advocacy may be considered protected concerted activity, which falls under the protections of Section 7 of the National Labor Relations Act.
Additionally, political campaigning during work hours or on company-provided equipment may violate your non-solicitation policy or social media/electronic communications policy. It may also rise to the level of harassment under existing anti-harassment policies. Review with your managers and supervisors all such policies to ensure they are consistently applied in the context of political activities and that managers and supervisors are reporting all complaints through the proper channels.
Finally, make sure to consult with legal counsel before taking adverse action against an employee for any kind of political activity or expression.