A Word on Political Speech in the Workplace

by Miller & Martin PLLC
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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. 
  • Some political issues can also have religious implications – such as abortion or same-sex marriage – so all employees should use caution against expressing their political views in an offensive way. Expressing support for a particular candidate or party rather than debating controversial social issues which could become religious discussions as to who is morally “right” and “wrong” is appropriate in the workplace, subject to the other parameters an employer may put in place regarding the “how” and “where” of such expressions, as outlined above.
  • Some people feel more strongly about politics than others. If merely the mention or sight of an opposing candidate’s name causes you to “see red,” such employees need to keep a check on their emotions. If a private employer chooses to allow some political discussion or even some postings in employee cubicles, lockers, etc., everyone has the same right to urge support for the candidate of their choice through such passive, non-offensive means.  
  • All employees should be reminded to make sure it is clear that they are not speaking on behalf of the Company when attending any political event away from work or in any on-line social media posting.
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.
The opinions expressed in this bulletin are intended for general guidance only. They are not intended as recommendations for specific situations.  As always, readers should consult a qualified attorney for specific legal guidance.  Should you need assistance from a Miller & Martin attorney, please call 1-800-275-7303.

 

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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