POLITICAL TALK AT WORK: Employer Dos, Don'ts, and Be Very, Very Carefuls

by Constangy, Brooks, Smith & Prophete, LLP
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After Tuesday night's rather -- intense -- Presidential debate, it was fun to watch Gov. Romney and President Obama good-naturedly tease each other at last night's Al Smith Memorial Foundation Dinner to benefit Catholic Charities of New York. With two and a half weeks to go until election day (November 6 - don't forget to vote!), I thought this would be a good time to provide some guidance for employers seeking to keep a civil workplace between now and November 7.

(By November 8, we hope that everyone has forgotten this entire ordeal and is back to normal until next year, when the 2016 campaign begins.)

HERE'S THE NOVEMBER 7 RULE: If your candidate won, do not "spike the ball in the end zone" at work. Wait until you get home. If your candidate lost, wish the winner well, or say nothing. Mourn for the demise of our once-great nation when you get home.

DO's

DO encourage employees to "talk politics" with people they substantially agree with, or people who are still making up their minds and are looking for guidance. Discourage political discussions among employees who have fervently-held opposing views and whose minds are made up.

DO encourage employees to keep their political discussions courteous, respectful, and focused on the issues rather than personalities or candidates' "EEO" characteristics, such as the President's race or Governor Romney's religion.

Mitt_Romney_at_2012_CPAC.jpg"People seem to be very curious as to how we prepare for the debates. First, refrain from alcohol for 65 years before the debate." *Zing*

DO (if appropriate for your work environment) prohibit political discussion in the presence of customers, or when employees are expected to be actually getting some work done.

DO consult with applicable state law about voting leave, and comply with it. Please note that in some states you have to post a voting-leave-rights notice in advance of election day. Be sure you have done this if those laws apply to you.

DO be aware that, in a handful of states, it is unlawful for an employer to try to influence an employee's vote. (The voting-leave chart linked in the prior "DO" includes these laws.) If you operate in one of these states, you should not overtly (with employees) endorse or oppose any candidate, referendum, or other initiative.

In your spare time, please pay a visit to Jon Hyman, host of the October Employment Law Blog Carnival. Jon's theme this month is 007, and he has video clips from James Bond movies as well as links to more great posts than you can shake a stick martini at.

DO remind employees of your internet and email policies, and encourage them to be judicious and professional in sending or forwarding political emails or links.

DO feel free to break up employees' political discussions at work if the atmosphere is becoming contentious or employees appear to be uncomfortable. DO encourage your employees to "self-police" political discussions by leaving, or warning their co-workers when the discussion appears to be heading into hostile territory.

DO feel free to ensure that political discussions do not interfere with getting the job done.

DON'Ts

DON'T have a flat ban on all political talk at work. As most employers know, the First Amendment does not apply to private workplaces, but the National Labor Relations Act could come into play if the discussions implicate "terms and conditions of employment."

Barack_Obama_Green.jpg"Sometimes it feels like this race has dragged on forever, but Paul Ryan assured me we've only been running for two hours and 50-something minutes." *Rimshot*

DON'T make, or allow others to make, comments about candidates that may be discriminatory or harassing based on the candidates' or their supporters' race, sex, national origin, religion, color, age, disability, or any other legally protected characteristic.

BE VERY, VERY CAREFULs

BE VERY, VERY CAREFUL about political discussions among employees about issues that are especially inflammatory or emotional, such as same-sex marriage, LGBT rights, reproductive rights, and affirmative action. These are legitimate topics for political discussion, but they are also sensitive and carry a high risk of creating hurt feelings or causing hostility.

BE VERY, VERY CAREFUL about sharing your company's political views, assuming you live in the majority of states where this is legal. Be sure to preface your discussion with a statement to the effect that the decision of how to vote is the employee's, and the employee's alone. Then present the company view as "We wanted to share the Company's position on [CANDIDATE OR ISSUE]." Keep the discussion objective, factual, and focused on issues, not personalities. At the end, remind employees that you are only sharing the company's view and are not attempting to tell employees how to vote. But be aware that some employees will still view this as "pressure," and take that into account in making the decision whether to share the company's views at all.

Photo credits: Wikimedia Commons (photos are not from the Al Smith dinner, but captions are, with the exceptions of "zing" and "rimshot," both of which I came up with all by myself).

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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