With the Presidential election just around the corner, employees may be talking about a lot more than gossip around the water cooler. Given the argumentative nature of politics, every employer should be listening for potentially volatile discussions, with a goal of keeping the workplace comfortable and free of hostility this election season.
Private employers actually have a lot of latitude when it comes to limiting speech and expression - especially when it threatens the daily operations of the business. When you mention limiting speech, everyone naturally references their First Amendment rights. The protection of free speech afforded in the First Amendment applies to government censorship, leaving private employers free to apply their own restrictions in the workplace. Public company employees are generally more protected by the First Amendment than private, due to public scrutiny and industry regulations. In contrast, private employers can control employee work time activity, including any political speech or activity, especially if it interferes with work performance. Employers may also restrict employees from using company resources for political communications, including computers, internet and cell phones.
The National Labor Relations Act (“NLRA”) does provide one major avenue of protection for private employees that employers should take into consideration. Section 7 of the NLRA protects employee speech when it is concerted and specific to a work related matter. Employee speech is concerted if it represents more than one employee, engaged in an activity to improve conditions of their employment such as wages, hours or other terms. There are also state specific laws and court decisions that address political speech and activity at work. These applications vary from state to state, and most pertain to off-duty activity, which cannot be restricted, but employers should be aware of there implications as well.
Even though there is no law specifically prohibiting employment discrimination on the basis of political affiliation, it can be generally protected under Title VII of the Civil Rights Act and the Americans with Disabilities Act, along with a host of other federal, state and local laws. Employers are prohibited from discrimination, harassment and retaliation, which often spills over to encompass political speech, because politics are fundamentally infused with issues that cross the boundaries of race, national origin, sex and religion, etc. Regulating workplace political activity and speech is reasonable, but there are still legal pitfalls to be aware of:
- All employees must be given time to vote freely
- Managers need to be aware of discussions that lead to conflicts involving protected classes; race, sex, national origin, religion etc, which can turn into hostile work environment claims.
- Enforcement of policies regulating political speech should be consistent, regardless of viewpoint or lack of a legal threat.
All employers should strive to create a neutral workplace, providing a safe environment where employees feel free to express themselves, not stifled by their employer or other employees. Casual discussions regarding politics can foster this freedom of expression, and positive working relationships, which are crucial for employee morale and retention. Healthy discussions can be good for the workplace as long as they do not interfere with productivity or cause employee problems.
Employers do need to take precautions and consider what is best for their business, imposing certain limits on employee activities and speech is a sensitive undertaking, which deserves the attention of legal counsel -- to avoid adopting overboard restrictions or creating adverse reactions within the workforce. Setting reasonable parameters through employee policies is always a solid safeguard. However, a complete ban on political discussions is very hard for employers to regulate. Measures can be put in place to protect the company and employees from political discussions that could potentially lead to trouble. When developing a policy that regulates employee speech, it is important to think about all of the ways in which employees engage with one another; including the use of company resources, such as smartphones and emails. Regulating these mediums for sending political messages can be an effective way to curb political debates.
Always remember, what’s good for the employee is good for the employer. Political activity conducted by the employer, such as solicitations for campaign contributions, visits by candidates, allowing employees to use company time to volunteer for a specific campaign should be considered parallel to employee initiated activity, and therefore, covered under any policy put in place by the company. There are strict federal election laws surrounding public corporations engaged in political activities, regulating how employers can interact with all constituents. Private employers are subject to the same restrictions imposed upon their employees by any policy they put in place.
A policy limiting speech and activity in the workplace is likely to be meet with employee resistance, and seen as a limitation of freedom. Introduction of such a policy could be best approached through one-on-one discussions with employees, explaining that the policy is not to silence their beliefs and opinions, but to honor everyone’s differences. Honoring differences should be at the core of every employee handbook. Traditionally a Code of Conduct policy addresses respect for diverse opinions, beliefs, values and goals reflecting all employees equally. A Code of Conduct policy that recognizes a company’s diverse workforce is a great first step in working towards others policies and specifically one that addresses political speech.
Fostering respect for diverging points of view is a constant process, but can be highlighted by external events that filter into the workplace, such as elections. This heightened political season is a great time for Human Resources to offer training sessions on pertinent topics such as harassment, discrimination and situations that create a hostile work environment. Train your staff how to recognize a heated discussion, and how to diffuse one.
Cooling political conflict can be a slippery slope for managers and employers. The key to avoid conflict is recognizing when to step in between co-workers before conflicts escalate, productivity suffers and legal matters ensue. It may also be a good idea to repost the company harassment policy as a gentle reminder to employees that disagreements can lead to more serious accusations. Along with the harassment policy make sure your reporting and complaint system is clear, accessible and posted.
In our daily working lives, the political environment in the workplace may not be as strained as what is playing out in the real election arena. A 2011 Monster.com survey indicated a favorable and stable workplace environment in which employers and employees felt they could freely express themselves politically without suffering or causing conflict.
- 52% of employees considered their workplace safe to express political views that are different from their co-workers.
- 79% of employees said it was not difficult to work with co-workers who did not hold the same political beliefs.
- 80% of employers expressed no concern about personal political views of their workforce, as long as they performed their jobs well.
Never-the-less as rhetoric heightens, employers need to ensure that political discussions at work stay cordial, do not offend, do not hurt employee morale and productivity, and do not lend to problems. Policies are always positive steps toward a safe and fair workplace. If it feels as though your company could benefit from the protection of a document specifically outlining the parameters of political speech and activities, do not hesitate to begin the process of putting that policy in place. As with all safeguards, it is better to be proactive than reactive, and protecting your company and your employees from potential volatile situations is good for everyone.© 2014 by McBrayer, McGinnis, Leslie & Kirkland, PLLC. All rights reserved.