The fast-approaching mid-term elections and the opening on the U.S. Supreme Court may mean you will hear employees expressing their political views. Below, we answer common questions about politics and the workplace.
Q: Are political discussions protected by the First Amendment?
A: Employees do not have the same First Amendment protections inside the workplace as they do outside. 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.
Q: Is it a good idea to ban political discussions in the workplace?
A: While employers in the private sector may generally place reasonable restrictions on political discussions during work time, 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 performance, or potentially violate nondiscrimination laws, respond in accordance with your company’s written policies and practices. When monitoring employee conduct, treat all employees consistently regardless of their political views.
Q: This upcoming election, there is a ballot measure that would increase the minimum wage to $15 per hour, which I oppose because I think it would hurt my business. Can I ask my employees to stop discussing the ballot measure?
A: Among other things, Section 7 of the National Labor Relations Act (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, such as an increase to the minimum wage. Additionally, enforcing restrictions during non-work hours (such as breaks) or in non-work areas (such as break rooms) may violate the NLRA.
Q: One of my employees is a delegate for a political party and asked for time off to participate in the state convention. What are my obligations?
A: You will have to check your state and local law. Some jurisdictions require employers to provide unpaid leave to delegates so they can participate in conventions and certain other activities.
Q: One of my employees is running for the state legislature. Is their job protected during their campaign and/or service?
A: Some states expressly prohibit employers from taking adverse action against employees because they are a political candidate, an elected official, or miss time from work in order to perform duties associated with their elected position. Some states also require employers to provide unpaid leave so employees can serve as elected officials. Check your state law to ensure compliance.
Q: I noticed one of my employees had a bumper sticker for a candidate whose views go against mine. Can I fire this employee for supporting such a candidate?
A: Some states and local jurisdictions prohibit employers from discriminating or retaliating against employees on the basis of their political beliefs, voting choices, and/or lawful activities outside of work. Even in the absence of a prohibition, it’s generally not considered a best practice to make employment decisions based on lawful political activities. However, there are employers that have made exceptions out of concern the employee’s conduct could create a hostile work environment or otherwise negatively impact the workplace, such as when an employee supports a hate group.
Before taking action against an employee for their political activity, ask yourself:
Has the company conducted a thorough and impartial investigation?
Is this employee’s speech or activity protected by 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?
If you are still unsure, err on the side of caution and consult with legal counsel.
Q: I noticed one of my employees using our company printer to make posters for the political candidate they support. Do I have to allow this?
A: 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. Make sure you clearly communicate these rules to employees in a written policy.
Note: During the Obama administration, the National Labor Relations Board, which enforces the NLRA, 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. While the Board hasn’t yet reversed this ruling, it may do so in the near future.
Q: Can I limit the display of political posters and pins in the workplace?
A: 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 their union supports a particular political candidate, you may be required to allow it.
Q: Can I tell my employees to vote for a certain candidate?
A: Certain state laws may restrict or prohibit employers from attempting to influence employees’ votes or political activities. Make sure you understand the laws that apply to your business and ensure that your company does not violate these laws.
As another election season heats up, make sure you understand your rights and obligations regarding political discussions and activity and have policies and practices in place that comply with applicable laws.