As the 2016 election nears, some employers are losing productivity, attention to customer service and worker focus as personnel discuss or advocate their political opinions.
However, private employers often can reassert control by recognizing that two commonly held beliefs about "politics in the workplace" are, in fact, misconceptions.
Employers who institute carefully crafted and uniformly enforced policies that limit political activities can lower the risk of employee claims while increasing worker productivity.
Everyone has experienced both "workplace politics," in which Type A employees claw their way to the top at the expense of co-workers, and "politics in the workplace," in which employees discuss candidates for office and political issues of interest.
We now are deep into the 2016 election cycle, which means it's likely that, given many employees' intense interest in and support of candidates and issues, some employers are losing productivity, attention to customer service and worker focus as personnel discuss or advocate their opinions. However, private employers often can reassert control by recognizing that two commonly held beliefs about "politics in the workplace" are, in fact, only simple misconceptions.1
Misconception 1: Employees Have a Constitutional Right to Talk "Politics" at Work
Employees, as well as many employers, commonly but mistakenly believe that the First Amendment to the U.S. Constitution guarantees "freedom of speech" at work. In fact, the First Amendment applies only to government action and neither limits the rights of private employers to regulate employees' communications nor provides any constitutional right for those workers to express thoughts or opinions at work. As a result, there is no constitutionally protected right of "free speech" in the offices and factories of private employers. Although employees may be entitled to express their views freely on their own time or on a soapbox in the park, they have no such wide-ranging constitutional rights at work. Absent rights provided by one of the limited exceptions discussed below, there are no legal protections for political activities in the workplace, so private employers generally may refuse to hire, adjust pay/benefits and even discharge "at will" employees because of their political views.2 In short, "political discrimination" often is not unlawful discrimination.
Many employers do have policies limiting the discussion of political candidates and issues at work because of the risks of unlimited "free speech" in the workplace. For example, although there is no general federal law prohibiting employment discrimination on the basis of political affiliation or actions, sometimes seemingly neutral conversations about "politics" can lead to claims of employer discrimination, harassment or retaliation violating federal or state discrimination laws.
Workplace debates about a particular candidate's fitness for office often include mention of genders, races or religions or their views on hot-button social issues such as abortion, "family values," immigration and healthcare, which often are polarizing issues on which there are strong and opposing views among employees of different genders, religions, national origins, etc. The potential for heated disagreements – and inflammatory, impulsive, ill-advised comments – is obvious. Unfortunately, such comments sometimes result in claims of discrimination or retaliation in which it is alleged that "my supervisor is biased against [women/non-Christians/Hispanics] as shown by his comments about [healthcare/abortion/immigration policy]" or "the company punished me because I disagreed with my boss about [a social issue implicating gender, nationality, or religion]." Further, public discussion of schoolyard "bullying" seems to have prompted claims of "bullying" harassment by both supervisory and non-supervisory employees who forcefully advocated their political opinions to unreceptive co-workers. It is understandable, therefore, why many employers simply elect to minimize such controversies by prohibiting all "politics" at work.
Two General Exceptions
There are two general exceptions to the principle that private employers may legally implement a "no free speech or political activity in the workplace" policy.
First, laws in some states provide protections for political activities. For example, several states have "free speech," "political activity" or "off-duty conduct" laws that give employees rights not provided by federal law or the laws of other states. A sampling of such state laws is set forth later in this alert. As can be seen, the laws vary widely in scope and content; therefore, employers – particularly multistate employers – must carefully craft their own policies.
Second, and perhaps most importantly, the National Labor Relations Act (NLRA) restricts an employer's right to limit non-supervisory employees' communications about wages, hours and other terms or conditions of employment. These restrictions may apply not only when the protected communications occur in the workplace during working times but also when they occur outside the workplace during non-working times. In addition, the NLRA restrictions protect non-union employees as well as union-represented employees. The National Labor Relations Board (NLRB), the federal agency that enforces the NLRA, has long recognized that all non-supervisory employees have the right to engage in concerted communications about such matters as pay, benefits, and workplace safety as long as they do so in a lawful and proper manner. Such communications generally will not lose their NLRA protection unless they are expressed in a manner particularly "opprobrious, disloyal, malicious, or disruptive to workplace discipline." Unfortunately, there is no bright-line test, and the NLRB has continued to stretch the outer limits of what it believes is "protected."
As interpreted by the NLRB, employee communications are "concerted" not only when he or she acts with or on the authority of other employees but also when the employee seeks to initiate, induce or prepare for group action or brings truly group complaints to management. This includes a broad range of communications, some of which may be engaged in by lone employees acting with no apparent group involvement. It also is well established that the NLRA protects employee communications and activities "in support of employees of employers other than their own" or which seek to "improve their lot as employees through channels outside the immediate employee-employer relationship." One such channel is political activity. Therefore, employees' statements and actions concerning political issues and events may be protected by the NLRA if there is a sufficient connection to the workplace or to employees' terms and conditions of employment.3
Because the NLRA's protections are limited to political topics with a nexus to specific employment-related issues, employers lawfully may restrict workplace communications and activities that are purely political in nature. This would include, for example, communications generally touting a political party or candidate; displaying or distributing a "Vote for Smith" poster or campaign button; and wearing a T-shirt that seeks support for a proposed law to increase the speed limit. Although those communications and activities clearly are political in nature, they lack the connection to employment-related issues required to bring them within the scope of the NLRA's protections.
But the line between unprotected "purely political" communications and NLRA-protected communications becomes blurred when the subject matter touches on wages, hours or other terms or conditions of employment. For example, displaying posters or distributing leaflets saying "Vote for Smith – She'll Raise the Minimum Wage," or wearing a T-shirt asking co-workers to "Support Workers' Rights" by voting against a proposed "right-to-work law" likely are protected by the NLRA. Employers who restrict those types of communications risk exposure to a NLRB unfair labor practice charge. Not surprisingly, the NLRB also has extended the NLRA's protections to "mixed communications" that contain both protected and unprotected political content. As a result, employers have an even greater challenge when deciding which communications are or are not protected under the NLRA.
Misconception 2: Employees Must Always be Allowed to Display and Distribute Political Materials and "Campaign" in the Workplace
Employers generally have the right to adopt and enforce non-discriminatory rules prohibiting non-work-related activities in their workplaces, including "purely political" activities. For example, employers may ban employees from displaying or distributing materials that are purely political in nature; soliciting co-workers or customers to support purely political causes; using the employer's computer and email systems to engage in purely political communications; or wearing buttons, shirts or other items of clothing with purely political messages. Such activities are not protected by the NLRA. In addition, employees who engage in such activities in violation of the employer's published policies may be lawfully disciplined or discharged.
However, as noted above, political activities with a sufficient connection to employment-related issues may be protected by the NLRA. Therefore, any restrictions on such activities must comply with rules developed by the NLRB for such statutorily protected activities. For example:
An employer cannot lawfully prohibit workplace conversations about protected political subjects, even during working times, unless it similarly prohibits all other non-work-related communications.
If the protected political activity goes beyond simple conversation to actual solicitation of money or other support for a candidate or cause, then it may be prohibited during working times. But it may not be prohibited at all times on the employer's premises.
If the protected political activity involves distribution of literature, then it may be prohibited during working times and in work areas. But it may not be prohibited on non-working time in non-work areas.
If the employer provides employees with use of its computer and email systems to perform their duties, then it generally cannot prohibit employees from using those systems to engage in protected political activity during non-working times. However, employers still have the right to impose uniformly applied bans on employees' non-work-related use of other company equipment (such as copiers, printers and office supplies) to engage in political activities, including those protected by the NLRA.
In the absence of significant and demonstrable "special circumstances" – such as unique concerns about safety, patient care, damage to machinery or equipment, or customer service issues – an employer cannot prohibit employees from wearing buttons, T-shirts or other clothing displaying protected political messages.
As a result of the NLRB's rules, employers lose much of their control over employees' political communications and activities, both inside and outside the workplace, if they have a sufficient nexus to employment-related issues. Employers may not maintain overly broad rules that reasonably would be interpreted by employees as restricting such communications and activities, and employees may not be disciplined or discharged for engaging in them. We also can expect the current Board to try to find ways to expand the types of political activities that fall within the scope of the NLRA's protection, i.e., the required nexus may become more and more attenuated.
What Should an Employer Do?
Several "next steps" exist for employers concerned about potentially work-disrupting, productivity-sucking, fury-inducing "politics in the workplace."
First, prepare and implement a strong "no political activity" policy that has appropriate carve-outs for communications and activities protected by the NLRA or applicable state laws. Such carefully drafted policies not only are permitted but are considered an employer "best practice." An absolute ban on political communications and activities would be both impractical and unlawful under the NLRA.
Second, employers must ensure that their policies, including those dealing with political activities, comply with the NLRB's rules regarding permissible restrictions on workplace conversations, solicitation, distribution, use of the employer's computer and email systems, and messages displayed on buttons, shirts and other items of clothing. Although the NLRA prohibits employers from imposing an absolute ban on all political expression, it permits policies that 1) prohibit purely political communications in the workplace; 2) prohibit employees from soliciting money or support for political candidates or causes during working times; 3) prohibit distribution of materials about those subjects in working areas and during working times; and 4) prohibit any related workplace communications or conduct that disrupt operations or productivity, or are accompanied by violent, unlawful or other extreme behavior. However, given the NLRB's aggressive, pro-employee activity in this area, employers must be on the alert for new developments requiring modifications of their announced policies.
Third, employers should be prepared to promptly and effectively address violent, substantially disruptive, unlawful and other political communications and activities that fall outside the scope of the NLRA's protection.
Fourth, employers may wish to discourage supervisors (either formally or informally) from having political discussions with subordinates in order to minimize potential claims of discrimination, harassment or bullying. As noted above, supervisors are not protected by the NLRA. However, any such policy also must be tailored to comply with applicable state law.
Fifth, employers should periodically remind employees – perhaps by redistribution of the relevant policies – that the company insists on respectful treatment of all personnel, does not tolerate discrimination, harassment or retaliation, limits employees' access to and use of social media, and will investigate employee complaints of mistreatment. Although such reminders will make plain that political communications must comply with existing policies, the reminders must be carefully drafted in light of the NLRB's views (which expressly recognize that a certain amount of "disrespectful" conduct is permitted by the NLRA).
Finally, employers must enforce "political activity" policies even-handedly. If a violation is suspected or a complaint is made, a careful investigation should be conducted and discipline issued as appropriate. "Even-handed" enforcement means not only consistent enforcement among all employees regardless of political affiliation or opinion but also consistency as to subject matter. This means, for example, enforcing facially lawful "no solicitation" and "no distribution" rules as to both protected political solicitations and distributions as well as other types of workplace solicitations and distributions. Applying the rules only to NLRA-protected activities (e.g., protected political communications, union-organizing activities, etc.) will draw an NLRB unfair labor practice charge.
Employers need not lose control of their workplaces during the run-up to elections. A carefully crafted and uniformly enforced policy that limits political activities and "free speech" will lower the risk of employee claims while increasing worker productivity.
Sample of State Laws Addressing Workplace "Political Activity"
Various states have enacted laws impacting "politics in the workplace." Summaries of a few such laws are shown below. Of course, employers should consult knowledgeable counsel in those states before enacting policies or taking action pursuant to state law.
Employers are prohibited from 1) controlling the actions of employees in casting their votes; 2) refusing to allow an employee to take time off to vote; 3) enclosing in employees' pay envelopes threatening political mottoes or arguments intended to influence employees; 4) within 90 days of an election, exhibiting in the workplace any notice indicating that work will cease or wages will be reduced if a particular ticket or candidate is elected; and 5) forbidding or preventing employees from participating in politics or serving in public office. For further information, contact Colin Barnacle.
Connecticut criminalizes certain activities related to "politics in the workplace": any person who 1) during the period 60 days or less prior to any election, municipal meeting, school district election or school district meeting, attempts to influence any employee's vote by threats of withholding employment or by promises of employment, or 2) discharges any employee on account of any vote at any such election or meeting, shall be guilty of a Class D felony. For further information, contact Loren Forrest.
District of Columbia
Employers are prohibited from discriminating against employees as to their compensation, terms, conditions or privileges of employment because of their political activities or affiliations. For further information, contact Kara Ariail.
No state laws address politics in the private workplace.
No state laws address politics in the private workplace, but there is a statutory requirement that employees be allowed unpaid time off to vote. For further information, contact Josh Bosin.
Illinois employers are not permitted to maintain a record of employees' off-the-job political activities. For further information, contact Kenneth Jenero.
During the 90 days prior to an election, employers are forbidden from exhibiting in the workplace any threat intended to influence the political opinions or actions of employees. Various counties (including Prince George's and Howard) prohibit discrimination based on political affiliation. Maryland employers must provide up to two hours of paid time off to vote, if an employee does not otherwise have two continuous hours of off-duty time while polls are open. See Md. Elec. Code § 10-315. For further information, contact Kara Ariail,
New Jersey law provides that any employer (or any of its supervisors) that threatens to use force or cause harm to an employee in order to induce the employee to vote, to refrain from voting or for having voted for any particular candidate, or by duress or fraud hinders the free exercise of voting rights, shall be guilty of a crime of the third degree. Employers also are prohibited from 1) paying employees in "pay envelopes" on which there is printed the name of any candidate or any political motto or argument containing express or implied threats intended to influence the employee's political actions, and 2) within 90 days of an election, displaying in the workplace any sign containing any threat, notice or information indicating that, if a particular party or candidate is elected, the work will cease, the shop will close or the employees' wages will be reduced, or any other threat intended to influence an employee's political opinions or actions. New Jersey law also prohibits employers from requiring employees to attend employer-sponsored meetings or participate in any communications with the employer that have as their purpose communication of the employer's opinion about political matters; however, employees may be permitted to voluntarily attend such meetings or receive such communications if employees are notified that they may refuse. For further information, contact Loren Forrest.
New York prohibits employers trying to influence an employee's vote by 1) intimidating the employee with physical force, violence, restraint, or other type of injury or loss; 2) placing a political message on or inside an employee's pay envelope; 3) exhibiting in the workplace, within 90 days of a general election, any poster or handbill that threatens that work will be stopped, wages reduced or the business will close if any particular ticket or candidate is elected or defeated; or 4) otherwise attempting to influence an employee's political actions. Further, the state's "off-duty conduct" statute prohibits employer discrimination based on an employee's "political" or "recreational" activities, including running for public office, campaigning for candidates or participating in political fundraising activities. For further information, contact Katherine Marques.
Oregon prohibits employers from subjecting employees to "undue influence" – defined to include actual or threatened loss of employment – with the intent to induce anyone to 1) register or vote, or register/vote in a particular manner; 2) refrain from registering or voting; 3) be or refrain from or cease being a candidate; 4) contribute or render services to, or refrain from contributing/serving, any candidate, political party or political committee; 5) challenge or refrain from challenging a person offering to vote; 6) apply or refrain from applying for a ballot as an absentee elector; or 7) sign or refrain from signing a petition, initiative, referendum, recall or candidate nominating petition. Further, an Oregon employer may not actually or threaten to discharge, discipline or otherwise take adverse action against an employee if he or she declines to attend or participate in an employer-sponsored meeting or communication which has as its primary purpose communication of the employer's opinions about religious or political matters. For further information, contact Louis Santiago.
Employers are prohibited from taking adverse action against an employee based on who the employee voted for or for refusing to reveal how he or she voted. Employers must allow employees to take leave to attend a local or state political convention and cannot threaten or retaliate against the employee for such attendance. For further information, contact Mary Goodrich Nix.
Employees who serve as election officials must be provided job-protected leave on election days. For further information, contact Kara Ariail.
State law prohibits employers from discriminating against an employee for supporting or failing to support any candidate, ballot proposition, political party or political committee. The state also criminalizes interference with or intimidation of a voter's signing or not signing an initiative or referendum. Further, a Seattle ordinance prohibits employer discrimination by reason of "political ideology," defined to include ideas or beliefs related to the functioning of government, including membership in a political party. For further information, contact Louis Santiago.
1 This alert addresses only a private employer's ability to control employees' political activities in its workplace and does not address the complicated federal and various (and varying) state campaign finance and fundraising laws, which often severely restrict employers' activities. Information on such campaign finance issues can be obtained from Holland & Knight Partner Christopher DeLacy.
2 An "at will" employee is one who does not have an express or implied contract of employment, that is, someone who can resign or be discharged at any time for any lawful reason with or without prior notice, warning or cause. The vast majority of U.S. workers are employed "at will."
3 The NLRB increasingly has invalidated employers' policies and work rules addressing a broad range of communications and activities on the grounds that they "could reasonably be construed" by employees to prohibit conduct protected by the NLRA. Within recent years, the NLRB has found unlawful common employer "bad behavior" policies which required that employees communicate in a respectful manner or not "pick fights" or not engage in harmful workplace gossip; policies prohibiting profanity, offensive/demeaning comments, defamatory remarks, or harassment of co-workers; and policies prohibiting employees from wearing clothing with racially-insensitive slogans or depictions. Some of those cases arose from in-person communications in the workplace but others involved employees communicating on social media. In each case, however, the NLRB decided the policy was overly broad and could have a "chilling effect" on employees' "protected concerted activity." Unfortunately, the NLRB's views regarding personnel policies and work rules are in flux, and many of its controversial rulings are being challenged in the courts. Therefore, employers should consult knowledgeable NLRB counsel before implementing policies restricting employees' communications and activities in or related to the workplace.