In the current political environment, employers and employees alike may be wondering – what, if any, political conversation in the workplace is acceptable or appropriate? Tones of “freedom of speech,” “freedom of association,” on one hand, intersect with tenors of “workplace harassment” or simple annoyance, on the other. Although like the political debates themselves, the rules governing politics in the workplace are not entirely black and white, here are some important guidelines.
As an initial matter, the freedoms of speech and association guaranteed by the First Amendment to the United States Constitution restrict the government’s ability to curtail citizen speech and association. Private employers generally are not regulated by the First Amendment. In fact, there currently is no federal law that broadly protects all political speech in the workplace of private employers. Nonetheless, there are several legal constructs that private employers must heed when they navigate the political waters impacting their workplaces today.
First is the federal National Labor Relations Act (“NLRA”). This law protects employees’ rights to act collectively with and for the benefit of their coworkers for purposes of mutual aid and protection, including to improve the terms and conditions of their employment. Many employment-related topics have partisan roots, such as minimum wage, union organizing, and leave laws. Therefore, conversations about these issues can be political in nature and are also likely protected by the NLRA. Even overt statements about a specific political candidate can fall under NLRA protection if the purpose behind the speech is to promote better working conditions among coworkers. This could include statements like, “Vote for “X” candidate because she will support an increase in the minimum wage.” Inflammatory speech and even the use of profanity has been found to be protected speech under the NLRA, so be sure to carefully look through all of the issues involved in employee speech on political topics before taking actions in response.
Second, federal civil rights laws also may come into play when political issues are discussed at work. Many of the current political hot topics relate to race, religion, gender and other characteristics protected by laws like Title VII of the Civil Rights Act of 1964. For example, workplace conversations about immigration may quickly tee up broader conversations about race and national origin. Transgender protections and the right to marry also may incite heightened emotion. Conversations designed to or even incidentally upsetting an individual based on a perception that their coworkers are biased against their own protected characteristic or the characteristic of a loved one or another coworker may give rise to discrimination or harassment complaints. Even when employee conversations about these topics are not intended to harass or otherwise upset others, employers should take seriously employee concerns about conversations of this nature, and remind employees that the company does not tolerate harassment or discrimination in the workplace.
Beyond these federal laws, several states have enacted laws protecting political action, and expressly prohibit employers from taking action against employees for things like voting, for voting in a particular manner, or for refusing to disclose how they voted. These state laws vary dramatically, and some states have no such protections. Employers must become familiar with the relevant laws in the states in which they operate to avoid the pitfalls presented by them.
Although this landscape can seem unwieldy, employers may be best-served to treat political discussions like any other speech in the workplace. Indeed, while employers might be able to carefully construct rules regulating political speech at work that is not legally protected, consider the impact having such restrictions might have on the general workplace morale. Instead of enacting these types of rules, employers may be able to use existing workplace guidelines to foster a positive working environment. If conversations become too heated or individuals feel targeted or threatened in any way, existing policies addressing workplace violence, anti-discrimination or general respect toward coworkers may apply. Using rules employees already understand to be part of the workplace emphasizes that employers are not simply trying to stop employees from expressing their opinions or discussing matters they are passionate about, but rather are promoting a generally safe and productive work environment for all employees.