As this year’s Presidential election approaches, you may hear employees expressing their political views and wonder about restricting political discussion in the workplace. Whether you want to preserve employee morale or maintain productivity, below are some factors to consider before addressing political expression at your company.
The First Amendment protects individuals from government restrictions on free speech. In the private sector, employers generally have more latitude to impose reasonable restrictions on political discussions during work time. Employees, however, may have greater protections when they are off-duty (see State and Local Laws below).
Strike a Balance:
While restrictions on political discussions during work time may generally be permitted in the private sector, trying to restrict all political discussion may be impractical and could have negative effects on employee morale. Instead, consider monitoring the issue, and if these types of discussions become disruptive, interfere with work product, or potentially violate nondiscrimination laws, respond in accordance with your company’s written policies and practices. For example, if an employee complains that a co-worker made discriminatory remarks, such as an age or gender-based comment, when voicing support for or against a particular candidate, conduct an investigation to determine whether a company policy was violated. When monitoring employee conduct, make sure to treat all employees consistently regardless of their political views.
National Labor Relations Act (NLRA):
Among other things, Section 7 of the NLRA grants employees the right to act together to improve wages and working conditions. The NLRA applies to both union and non-union employers. Political discussions may trigger NLRA rights when they relate to employment issues. For example, if an employee demonstrates support for a particular candidate because that candidate advocates a minimum wage increase, this may be protected by the NLRA. Additionally, enforcing restrictions during non-work hours (such as breaks) or in non-work areas (such as break rooms), may violate the NLRA.
State and Local Laws:
Some states and local jurisdictions prohibit employers from discriminating or retaliating against employees on the basis of their political beliefs, voting choices, running for office, and/or lawful activities outside of work. For example, Colorado and California generally prohibit employers from taking adverse action against employees for lawful activity that occurs while off-duty. If, however, the employee violates a law when engaging in political activity, such as by assaulting a protester at a rally, that unlawful conduct generally wouldn’t be protected. Check your state and local law to ensure compliance.
Use of Company Resources:
Employers generally have a right to limit employees’ use of company equipment and resources, such as work computers, email, and bulletin boards, for non-work related purposes. This includes company resources that are used to promote candidates, political ideas, and other non-work-related information.
Note: The National Labor Relations Board, which enforces the NLRA, has ruled that employees generally have a right to access their employer’s email system to engage in Section 7-protected activities, provided that it is done on nonworking time and the employer has given them access to the email system for other purposes.
Display of Political Material:
If political posters, pins, and other material that employees display in their workspaces or on themselves are a concern, employers generally have the right to establish reasonable limits. At a minimum, indicate that any material that violates the company’s nondiscrimination and anti-harassment policy or dress code is prohibited. Note: Any union-related material that expresses a political view may be protected by the NLRA. For example, if an employee wears a pin that indicates her union supports a particular political candidate, you may be required to allow it.
Employer Political Activities:
Various laws restrict or prohibit employers from attempting to influence employees’ votes or political activities. For example, managers should not impose political views on their subordinates. Make sure you understand the laws that apply to your business and ensure that your company and its supervisors do not violate these laws.
When contemplating how to address political discussions and activity, ensure compliance with federal, state, and local laws. Consult legal counsel as needed. When situations arise, some questions to ask include, but are not limited to:
- Has the company conducted a thorough and impartial investigation?
- Is this employee’s speech or activity protected by federal, state, or local law?
- Did this employee’s conduct violate a company policy (such as nondiscrimination, conflict of interest, or non-solicitation)?
- Does the company have a legitimate business interest in restricting the activity (such as disruptive behavior that’s not protected under the law)?
- Is the employee’s expression protected under Section 7 of the NLRA?
- How has the company handled similar situations in the past?