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, more 1 in 4 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. 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 United States 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, while some states have statutes that regulate free speech in the work place, Minnesota does not for private employees.
Therefore, Minnesota’s private employers are free to create and apply reasonable speech limitations to its workforce. In turn, Minnesota 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 work activities or creates a disruption in the workplace.
Minnesota does not have a statute that addresses an employer’s ability to limit off-duty conduct of a private 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. In addition, there is a specific Minnesota statute that prohibits employers from retaliating against employees for engaging in political activities.
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.
In Minnesota, during hours of employment, state employees are specifically prohibited by statute from directly or indirectly soliciting or receiving funds for political purposes, or using official authority or influence to compel an employee in the classified service to apply for membership in or become a member of any political organization, to pay or promise to pay any assessment, subscription, or contribution or to take part in any political activity.
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.
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, an employer can limit the political discourse that takes place on its computer systems.
Because 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 that they can do to try to keep politics within bounds. These include:
Minnesota law is very clear that employers must give employees paid time off to vote, requiring that “[e]very employee who is eligible to vote in an election has the right to be absent from work for the time necessary to appear at the employee's polling place, cast a ballot, and return to work on the day of that election, without penalty or deduction from salary or wages because of the absence. An employer or other person may not directly or indirectly refuse, abridge, or interfere with this right or any other election right of an employee.”
In addition, the law defines the concept of an election very broadly to include “a regularly scheduled election, an election to fill a vacancy in the office of United States senator or United States representative, an election to fill a vacancy in nomination for a constitutional office, or an election to fill a vacancy in the office of state senator or state representative.” If a Minnesota employer fails to honor the requirement to provide employees with paid time off to vote, it can be prosecuted by the county attorney and can be found guilty of a misdemeanor.
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.
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