Tis the season for political debates. If it hasn’t happened to you yet, it soon will. You’ll go into the break room at work and a group of people will be arguing in increasingly heated tones: should it be Hillary or Bernie? Trump or Cruz? Is Bernie too old? Hillary not “man enough”? What about Trump’s plan to ban all Muslim travel to the country? And so on through issues touching on race, religion, sexual orientation, and a myriad of other protected categories. What’s an employer to do?
Political speech in the workplace raises a host of issues that must be dealt with carefully. Here’s what every employer needs to know:
- Regulating Political Speech: Employees in private companies do not have unfettered rights to “free speech” in the workplace under the First Amendment, which generally applies only to government censorship of speech. An employer can regulate political speech in the workplace for legitimate business‑related reasons. This may include, for example, discipline of employees for political speech that is disruptive of the workplace or interferes with the efficient conduct of the business.
- Managers Should Stay Neutral: That said, it is important that an employer apply these standards uniformly. Employers may otherwise be faced with claims for disparate treatment, harassment or retaliation under state and federal anti‑discrimination laws (which protect religious beliefs, race, gender, age, and other protected categories). Given these landmines, it is especially important that managers and supervisors understand that they should not share their political opinions with subordinates, or worse yet, appear to impose their opinions on them.
- Some Accommodation May Be Required: This does not mean that workplaces need to be devoid of all political expression, and in fact, employers may need to accommodate individuals whose religious practices sometimes intersect with politics. For example, a pro‑life individual who bases his political support for a certain candidate on his religious beliefs may be allowed to display a religious symbol on his desk, but his advocacy for that candidate in the workplace may be restricted if it offends his co‑workers, especially after he has been informed that it is unwelcome.
- Speech & Affiliation That Is Protected: Care needs to be taken in two additional areas. First, under the National Labor Relations Act, both union and non‑union employees who speak out about employment issues may be protected. The NLRB has specifically stated that non‑disruptive political advocacy for or against a specific issue related to a specific employment concern occurring during non‑work time and in non‑work areas (e.g. protests regarding minimum wage issues) is generally protected, although such advocacy can be subject to lawful and neutrally‑applied restrictions during on‑duty time. In addition, some state laws may govern political activity. For example, the California Labor Code specifically provides that an employer cannot adopt or enforce any policy that tends to control or direct employees’ political activities or affiliations, and cannot coerce or influence employees to follow or refrain from following any particular political activity by threatening loss of employment.
- Time off to Vote: Last but not least, when voting day finally arrives, many states protect employees’ right to take time off from work to vote. Again using California as an example, employees there must be permitted to take two hours of paid leave at the start or end of a shift if the employee does not have sufficient time outside of working hours to vote.
The best course of action for navigating these waters is to create a culture in your workplace that is respectful and tolerant of others’ views, and train your managers on even‑handed application of policies and the importance of non‑retaliation for any employee complaints. Then take a deep breath, and wait for the next election cycle to commence!