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.