June 12th, 2018
With the election approaching, and presidential campaigns underway, the water cooler discussions have already started. While it is natural for employees to discuss current events at the workplace, how far should the political discussions reach? What are an employer’s obligations to keep the office politics free?
While the First Amendment governs free speech rights, the protections apply only to state action. Employers have the ability to regulate political discussion in the workplace. First Amendment protections do apply to public employers and protects a public employee’s rights to free speech. While some states have statutes that regulate free speech in the work place, others do not.
A clear employment policy is the best way for employers to control politics in the workplace. Employers can discipline or discharge an employee for violation of workplace policies, as long as the policy is applied consistently to all employees. In most cases, employers should reserve discipline or discharge to instances where the employee’s conduct interferes with his/her work activities or creates a disruption in the workplace.
An employer must be careful when regulating an employee’s off duty conduct. In general, before considering a policy or practice that regulates an employee’s off-duty political speech, an employer must determine whether there is a legitimate business reason to limit the conduct. Examples of a legitimate business activity might include:
Absent a legitimate business reason, employers can face claims of discrimination, or claims for invasion of privacy for trying to regulate non-work-related conduct.
Generally, employers can require that employees refrain from activities, such as campaigning, or passing out political literature during their work hours, excluding breaks and meal times. Employers with non-solicitation policies may apply those policies evenly with respect to all areas of solicitation, including selling cookies for a child’s school fundraiser, to soliciting for political purposes. Employers must be mindful of the NLRB’s protection of employee’s ability to protected concerted activity for their “mutual aid and protection.” These rules allow employees to generally discuss the terms and conditions of employment. Because the NLRA protects union-related activities (but not political speech), employers must take great care to distinguish the two when establishing a non-solicitation policy.
Political dress, including badges and buttons
When it comes to employees wearing badges, buttons, or other political dress, an employer may establish a neutral dress code that prohibits the employee from wearing T-shirts or other types of clothing. However, with respect to badges and buttons, the NLRA will allow employees to wear badges or buttons that are related to a union or to unionization as long as doing so does not create a safety hazard, or impact another legitimate business purpose. In general, if an employee is wearing a political button that also includes a union message, employers should refrain from prohibiting that activity.
Therefore, when considering a policy to regulate political speech and solicitation, employers should consider the following:
The ban must be uniformly applied – if anyone (including the company president) wears a political election button, the ban loses its force and an employee disciplined for violating the policy may have a claim for wrongful discipline or discharge, or even coercion under state law.
Any embargo on buttons may not extend to union buttons worn during a union organization or election as this is protected under the NLRA, but more about that later.
Employer company equipment includes items such as bulletin boards, copy machines, telephones and computer systems. While employees enjoy limited rights to solicit and distribute union-related materials on company property, an employee enjoys no such right with respect to use an employer’s equipment for union or other purposes, including political campaigning.
Employers who wish to control the use of their company’s computer systems, including email, must have and regularly enforce an electronic communication policy that warns employees that the computer systems are company property and that regulates the type of discussion that can take place on a computer system. An employer can limit the political discourse that takes place on its computer systems through an electronics communication policy,.
Under federal law, employers have some ability to ask executive or administrative personnel who are exempt from the Fair Labor Standards Act (FLSA) and have policymaking, managerial, professional or supervisory responsibilities to vote for or against a particular political candidate. This ability does not apply to the rank and file employees. However, employers are restricted from influencing employees’ actions in state elections. It is a violation of the election laws for a person acting alone or through another person to directly or indirectly subject any person to undue influence with intent to induce any person to:
“Undue influence” under this statute means “force, violence, restraint or the threat of it, inflicting injury, damage, harm, loss of employment or other loss or the threat of it, or giving or promising to give money, employment or other thing of value.”