As election day approaches, emotions rise and campaign rhetoric heats up -- everywhere – even in the workplace.

So what steps should you take to make sure “the pot doesn’t boil over” in your workplace?

Surprisingly, most people believe that they have a Constitutional free speech right which allows them to talk about anything they want no matter when or where. The Constitution in fact protects individuals against government action, so private sector employees do not have complete freedom of speech. Indeed, private employers can prohibit political speech in the workplace entirely, although a more moderate approach may be more advisable in the long run.

For instance, employers can restrict the “how” and “where” of such speech, precluding such speech in work areas, on work time or using Company property (e-mail, computers, phones, etc.). They also can prohibit conversation/conduct that is disruptive, harassing, threatening, or even mean-spirited. They also can prohibit political speech which violates other Company policies – such as anti-harassment, solicitation/distribution of non-Company literature or dress code (“no clothing with messages aside from clothing brand name, no T-shirts,” etc.) policies.

The failure to issue a reminder to employees regarding such matters may ultimately cause legal problems. Numerous lawsuits arose from comments/conduct which was perceived to be negative on a race or gender basis regarding the 2008 election and following the same.

It seems no alert nowadays is complete without a reference to the National Labor Relations Act (NLRA) and/or Board (NLRB). So as not to disappoint our loyal readers. . . the NLRA prohibits employers from disciplining employees on the basis of pro-union content. So, while an employer could lawfully prohibit an employee from wearing a T-shirt that says "Vote for X Candidate," the employer cannot prohibit the same worker from wearing a T-shirt that says "The [Union] Supports X Candidate." It does not matter if the "speech" is on a T-shirt, poster, bumper sticker, button, or ball cap, the employer cannot prohibit non-business-related items if they also express union-related content (again, unless the item itself is prohibited by a Company policy).

A few closing thoughts to include in training and other reminders to employees to be respectful and courteous of others’ views in addition to the above. 

Prudent employers will also want to remind managers and supervisors that they should not express an opinion about politics to employees, as this may be perceived as the "Company’s" point of view. Managers and supervisors should also be vigilant but evenhanded when it comes to enforcement of Company policies such as those listed above which may come into play in this politically-charged climate.

As a general matter, federal election laws limit what companies can do or say to encourage their employees to vote for a particular political candidate. Many states also have laws that prohibit employers from promoting a candidate or political point of view among employees, and several states have laws that prohibit punishing employees for their involvement in political activities outside the workplace.

In most states, employees must be given time off to vote if polling places are not accessible during non-working hours. The amount of time the employee is given to vote may vary from state to state, and in some jurisdictions, the employer can dictate when employees may take off to vote. (As the upcoming federal election gets closer, we will be sending out a state-by-state overview of voting leave laws, so stay tuned.)

As always, if you need assistance dealing with a politically-charged or other workplace issue, please contact David Whitlock or any member of our Labor & Employment law Practice Group.