Every election year workplaces will experience an increase in political discussion amongst employees. Sometimes these discussions can get heated especially where coworkers have differing political views and outlooks. Just what should and can an employer do to curb political discussion and activity in the workplace? This chapter aims to reveal just that.
The First Amendment of the U.S. Constitution governs free speech rights. However, the First Amendment’s protections apply only to state action. Therefore, private employers have the ability to regulate political discourse in the workplace. And, while the First Amendment protections apply to public employers and protects public employee’s rights to free speech, even public employers can apply limitations that will ensure efficient operations. In addition, some states have statutes that regulate free speech in the workplace.
Few states have statutes addressing an employer’s ability to limit off-duty conduct of an employee with respect to political activity. Nevertheless, an employer must be very 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 time. 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.
With respect to the restriction of employees wearing badges, buttons or other political dress and 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 would 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:
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.
As discussed in Chapter 28: Employment in the Internet age, 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. Through an electronics communication policy and employer can limit the political discourse that takes place on its computer systems.
Under federal law, employers have some ability to ask its 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. In some states, 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.
Policies and Forms
Chapter 32: Politics in the workplace