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. Employers have a real interest in addressing this subject because of the impact on their workers. The American Psychological Association reported that during the 2016 Presidential election, one in four younger employees reported feeling stressed out because of political discussions at work and more than twice as many men as women said political talk is making them less productive. Since then, studies have shown that political polarization has gotten much more pronounced. 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, subject to employee rights to engage in concerted action for mutual aid or protection under the National Labor Relations Act (NLRA). 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, while some states have statutes that regulate free speech in the workplace, Pennsylvania does not.
Colorado also does not have a statute that addresses an employer’s ability to regulate conduct of an employee with respect to political activity. Nevertheless, an employer must be very careful when attempting to regulate an employee’s political activities. Colorado employers are not vested with a right to compel their employees to participate in the company’s political lobbying efforts when those efforts are in opposition to the employee’s own political views. An employee who is terminated for refusing to engage in forced political speech at the behest of the employer may sue to recover damages for wrongful discharge in violation of public policy. Alternatively, an employee may pursue a claim under Colorado's Lawful Off-Duty Activities statute, which generally prohibits employers from terminating an employee for engaging in off-duty conduct that is not unlawful. In general, before considering a policy or practice that regulates an employee’s political speech, an employer would be wise to determine whether there is a legitimate business reason to regulate the conduct. Examples of a legitimate business activity might include:
Absent a legitimate business reason, employers can face claims of discrimination, claims that an employee’s rights under the NLRA to engage in protected concerted activity were violated 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 mealtime. Employers with non-solicitation policies must 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 National Labor Relations Board’s protection of employee’s ability to engage in protected concerted activity for their “mutual aid and protection.” These rules allow employees generally to discuss the terms and conditions of employment. Because the National Labor Relations Act (NLRA) protects union-related activities (but not political speech per se), 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 allows 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 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 generally enjoys no such right with respect to use an employer’s equipment for union or other purposes, including political campaigning.
As discussed in Chapter 32: Social media, employers wishing 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 email and other electronic communications systems.
Some caution is still warranted, however. A controversial decision by the National Labor Relations Board holds that employees who have access to their employer’s email system for work-related purposes have a presumptive right to use that system for protected communications regarding wages, hours, working conditions and union issues on nonworking time. It is not clear whether that decision encompasses communications about union endorsements of political candidates, especially when the candidates have taken issues on issues central to workplace concerns such as calls for a $15 per hour minimum wage. The Board currently is considering whether to scale back on the right of employees to use their employer’s email for non-work-related purposes. Since the law in this area is not firmly established, employers should exercise caution before disciplining an employee who uses company email during non-working time to advance a political message related to union activities.
Political discussions can sometime get out of hand and wind up costing employees their careers, for those employers who do not attempt to shut down all political discourse in the workplace, there are very practical things they can do to try to keep politics within bounds. These include:
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