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Workplace Politics: Cooling the Debates

With the Presidential election just around the corner, employees may be talking about a lot more than gossip around the water cooler. Given the argumentative nature of politics, every employer should be listening for potentially volatile discussions, with a goal of keeping the workplace comfortable and free of hostility this election season.

Private employers actually have a lot of latitude when it comes to limiting speech and expression - especially when it threatens the daily operations of the business. When you mention limiting speech, everyone naturally references their First Amendment rights. The protection of free speech afforded in the First Amendment applies to government censorship, leaving private employers free to apply their own restrictions in the workplace. Public company employees are generally more protected by the First Amendment than private, due to public scrutiny and industry regulations. In contrast, private employers can control employee work time activity, including any political speech or activity, especially if it interferes with work performance. Employers may also restrict employees from using company resources for political communications, including computers, internet and cell phones.

The National Labor Relations Act (“NLRA”) does provide one major avenue of protection for private employees that employers should take into consideration. Section 7 of the NLRA protects employee speech when it is concerted and specific to a work related matter. Employee speech is concerted if it represents more than one employee, engaged in an activity to improve conditions of their employment such as wages, hours or other terms. There are also state specific laws and court decisions that address political speech and activity at work. These applications vary from state to state, and most pertain to off-duty activity, which cannot be restricted, but employers should be aware of their implications as well.

Even though there is no law specifically prohibiting employment discrimination on the basis of political affiliation, it can be generally protected under Title VII of the Civil Rights Act and the Americans with Disabilities Act, along with a host of other federal, state and local laws. Employers are prohibited from discrimination, harassment and retaliation, which often spills over to encompass political speech, because politics are fundamentally infused with issues that cross the boundaries of race, national origin, sex and religion, etc. Regulating workplace political activity and speech is reasonable, but there are still legal pitfalls to be aware of:

  • All employees must be given time to vote freely
  • Managers need to be aware of discussions that lead to conflicts involving protected classes; race, sex, national origin, religion etc, which can turn into hostile work environment claims.
  • Enforcement of policies regulating political speech should be consistent, regardless of viewpoint or lack of a legal threat.

All employers should strive to create a neutral workplace, providing a safe environment where employees feel free to express themselves, not stifled by their employer or other employees. Casual discussions regarding politics can foster this freedom of expression, and positive working relationships, which are crucial for employee morale and retention. Healthy discussions can be good for the workplace as long as they do not interfere with productivity or cause employee problems.

Employers do need to take precautions and consider what is best for their business, imposing certain limits on employee activities and speech is a sensitive undertaking, which deserves the attention of legal counsel -- to avoid adopting overboard restrictions or creating adverse reactions within the workforce. Setting reasonable parameters through employee policies is always a solid safeguard. However, a complete ban on political discussions is very hard for employers to regulate. Measures can be put in place to protect the company and employees from political discussions that could potentially lead to trouble.  When developing a policy that regulates employee speech, it is important to think about all of the ways in which employees engage with one another; including the use of company resources, such as smartphones and emails. Regulating these mediums for sending political messages can be an effective way to curb political debates. Check back on Friday, October 5th as we continue this discussion.

Preston Clark Worley is an associate with McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Worley concentrates his practice in employment law, criminal defense, litigation and telecommunications. He is located in the firm’s Lexington office and can be reached at pworley@mmlk.com or at (859) 231-8780.

This article is intended as a summary of newly enacted federal law and does not constitute legal advice.

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