The 2020 presidential election, coupled with nationwide civil unrest and a global pandemic, is creating a lot of conversation in employees’ personal and professional lives. In a February 2020 survey, employees reported:
- 78% discuss politics at work;
- 47% said the discussion of politics negatively impacted their performance;
- 33% take in more political news at work; and
- 36% avoid co-workers based on political ideology.
Clearly, political activity and expression is an increasingly important influence in the workplace. But what can employers do to ensure it does not create a negative work environment? Keep reading to find out more about the key laws that affect how an employer may handle political activity or expression and some tips for addressing these tricky situations.
First Amendment Myth
Imagine a scenario in which you have a politically active employee who talks passionately about the presidential election, often wears political apparel, and displays political messages in his Zoom backgrounds. Another employee complains about this person, but when the politically active employee’s supervisor counsels him about it, he claims First Amendment protections. Is the employee correct?
Significantly, the First Amendment applies only to government action (and thus government employers), not to private employers. Employees of a private employer do not have First Amendment protections to engage in political expression at work, though they may have some protections under other laws, as discussed below.
Public employees do have First Amendment rights, but there are some caveats:
- The speech must be a matter of public concern; and
- It depends on a balance of whether the speech interferes with workplace duties, creates a conflict, or undermines public trust and confidence.
Laws Related to Off-Duty Conduct and Political Activity
Some states and cities have laws that prohibit employers from discriminating or retaliating against employees based on lawful off-duty conduct, political activity, or political ideology. For example, the California Labor Code prohibits employers from:
- Making, adopting, or enforcing any rule or policy forbidding or preventing employees from engaging or participating in politics or running for public office;
- Making, adopting, or enforcing any rule or policy that tends to control or direct the political activities or affiliations of employees; or
- Using the threat of job loss to coerce, influence, or attempt to coerce or influence employees to take or refrain from taking any particular course of political activity.
These Labor Code sections generally prohibit only employers, not employees, from taking actions that are politically motivated. Courts have interpreted political activity broadly to include non-partisan activities, including wearing symbolic armbands and associating with others to advance beliefs and ideals.
In addition to the fact that certain jurisdictions have off-duty conduct laws, the National Labor Relations Act (NLRA) protects the rights of employees to act together to address conditions at work, including engaging in conversing with each other – both in person and on social media. Notably, the NLRA also applies to non-union workplaces. Certain political expression may spill over into conversations regarding work conditions and may be protected by the NLRA. The National Labor Relations Board (NLRB), which enforces the NLRA, shifts markedly depending on which party holds the presidency, and the current law may or may not change come 2021. The current NLRB is affording employers greater leeway in handbook policies, using a legitimate business justification balancing test. But policies that prevent employees from communicating about working terms and conditions remain problematic.
Enforcement of Anti-Discrimination and Harassment Policies
Politics can bleed over into issues related to protected classes, including race, national origin, religion, sexual orientation, etc. Imagine, for example, a scenario in which an employee is making anti-immigrant statements to his co-workers who are immigrants or threatening their safety because of their immigrant status. Anti-discrimination/harassment policies and respectful workplace policies can and should be enforced. Protecting employees from unlawful harassment and discrimination and from any threats to their safety remains an important responsibility of the employer.
Protests and Rallies
Many companies are grappling with how to change their polices in accordance with health and safety guidelines for the coronavirus pandemic. If employees are coming to the office or interacting in-person, companies may need to consider how an employee’s off-duty activities may affect the safety of their co-workers.
In the context of COVID-19, consistent application of policies is a critical tool for avoiding political discrimination or retaliation. For example, an employee who attends a large barbeque that didn’t require social distancing or masks should be treated the same as an employee who attends a large political rally or protest that didn’t require social distancing or masks.
And what if an employee engages in questionable or violent conduct at a protest or rally? Local laws may restrict employer action to some extent, but many such laws protect only lawful off-duty conduct. Thus, for example, an employee unlawfully assaulting someone at a protest would not be protected from employer action. However, companies should be careful of laws expressly referencing political activity and should be sure to enforce policies consistently as between employees engaging in questionable conduct at political gatherings versus those engaging in similar conduct at non-political events.
Employers are not required to accommodate politics in their dress codes; they can prohibit political messages on employees’ t-shirts, hats, masks, buttons, etc. Again, consistency is key to enforcing such policies. Favoring or allowing one political message while prohibiting another appears discriminatory or retaliatory. Employers can allow for variations depending on their level of comfort. For example, an employer may allow apparel with statements related to social issues and not apparel related to political parties.
It is important to remember that respectful workplace policy and expectations for conduct in front of customers still can be enforced in this context.
Political Solicitations and Employer Political Pressure
Employers may prohibit political solicitations at work, including handouts about candidates and issues, solicitations for contributions, and solicitations for signatures. However, non-solicitation policies should include exemptions for workplace issues protected under the NLRA.
Even if an employer is particularly invested in an issue, the best practice is for employers to avoid imposing political opinions on employees. This guidance also applies to managers and supervisors in the company.
Some states and cities expressly prohibit:
- retaliation against employees for failing to support a candidate or issue;
- communication of the company’s political position by management; and /or
- imposition of political opinions on subordinates.
It is also important to remember that employers cannot reimburse employees for political contributions.
Review Your Policies and Train Your Managers
Review your state’s and city’s laws on political expression and voting. Policies that can help navigate these issues include:
- Anti-discrimination/anti-harassment/respectful workplace policies;
- Non-solicitation policy;
- Dress code;
- Attendance policy;
- Limitation of personal activities at work;
- Limitation of use of company equipment;
- Electronic communications policy; and
- Express limitation of political activity at work.
Once you have reviewed and updated your policies, be sure to communicate those policies to employees. As a leader, make sure that your employees know that they can come to you with concerns and be responsive to employee questions. Be sensitive to any potential discrimination or retaliation, and plan responses to common questions. For example, anticipate the First Amendment argument and be prepared with an appropriate response.
Don’t forget to meet with your managers or other leaders in the company to remind them to report issues, to avoid political discourse, and to ensure that they foster civility during campaign season among their teams. Train them to interrupt employee conversations to maintain civility, and review etiquette for Zoom and virtual workplaces.
- Don’t be afraid to manage this.
- Some solutions may be simpler than you think.
- Know what law applies in your jurisdiction.
- Review and, if needed, modify your policies.
- Train managers and supervisors.
- As with all things HR, be consistent.
- This will not disappear after the election. Set policies that will form the foundation for dealing with these issues for the lifetime of your company.