As we enter the presidential election season — one expected to be highly polarizing — employers may encounter a broad range of employee political speech.
How and when employers respond to employee political speech requires careful legal and practical considerations. Among them is the ever-changing landscape of what could be considered protected speech and what workplace policies are permissible.
Just as important, employers must consider their own corporate culture. This includes considering the effect that limitations on and responses to political speech may have on morale and productivity.
In the constant push and pull of employee relations, employers must balance the desire to limit distractions caused by politics-related discussions in the workplace with reputational exposures.
To say the least, managing all aspects of political speech and content affecting the workplace is like walking a tightrope.
Issue #1: Potential Legal Risks
Before an employer institutes or acts on workplace policies regulating political speech, it must consider what constitutes political speech or behavior.
For example, “political speech” can encompass not only discussions but also activism, voting, running for office, campaigning, participating in rallies, attire, posting bumper stickers, soliciting political contributions, and posting or “liking” on social media about political issues. These political issues include immigration, gun safety, LGBTQ+ rights, family values, foreign policy, parental rights, energy and climate, censorship, and so on.
An employer also must be aware of the array of protections related to employee speech that exist in the public sector versus in the private sector. Often, private sector employees believe their free speech rights extend into the workplace. This generally is not the case.
First Amendment freedom of speech rights may come into play for public sector employees when they are engaged in speech as private citizens. The same federal protections do not extend to the private sector workplace.
This article focuses on the challenges and potential exposure private sector employers face when regulating or responding to employee political speech and content affecting the workplace.
Private Sector Exposure Areas
National Labor Relations Act, Section 7
Section 7 of the National Labor Relations Act (NLRA), which applies to both union and non-union employees, gives employees the right to engage in concerted activities. It protects employees who are acting together for purposes of collective bargaining or other mutual aid or protection.
As for political discussions, the NLRA bars employers from prohibiting employee conversations relating to labor or working conditions, even if those conversations are couched in terms of politics or current events.
This NLRA protection extends to time outside of work when employees attend rallies or protests concerning work-related issues.
It can be complicated to identify what sort of political activity might fall within the scope of the NLRA’s protection. For instance, support for or against proposed immigration reform could fall within the scope of work because the hiring of immigrants could appear to affect the terms and conditions of employment at a particular company.
The same could hold true for campaigning in support of pay equity or increased minimum wage laws. Discussions about diversity, equity, and inclusion could constitute protected activity and might relate to an employer’s diversity, equity, and inclusion efforts or lack thereof.
Further, the broad view of employee Section 7 rights being adopted and facilitated by the current National Labor Relations Board and its general counsel has made placing any restrictions on employee speech or conduct that arguably touches on terms of employment harder.
Title VII of the Civil Rights Act of 1964 and Other Federal Antidiscrimination Statutes
Under Title VII of the Civil Rights Act of 1964, employers may not retaliate against employees who exercise political speech to report discrimination or harassment under Title VII and other antidiscrimination laws.
Employers must be aware of the nexus between social and cultural movements that lead to political speech and activities and the classes of individuals protected from discrimination under federal laws. These laws include Title VII of the Civil Rights Act, Age Discrimination in Employment Act (ADEA), Americans With Disabilities Act (ADA), and Genetic Information Nondiscrimination Act (GINA).
Employees (and applicants for employment) are protected from discrimination based on:
- race, color, religion, sex (including pregnancy, sexual orientation, or gender identity), and national origin under Title VII;
- age (40 or older) under the ADEA; disability under the ADA;
- and genetic information (including family medical history) under GINA.
Here again, trying to regulate political activities related to social movements could lead to charges of discrimination against the employer if the regulations target, directly or indirectly, those in protected classes.
Conversely, failing to address, manage, and, possibly, halt political discussions on polarizing social issues could lead to hostile work environment or bullying allegations. Employees may also feel a lack of inclusion and belonging which can derail an organization’s efforts to recruit and retain top talent.
It is important to note “political affiliation” is not a protected class under Title VII.
State Laws
There is a vast network of state laws that control an employer’s ability to regulate an employee’s speech and content affecting the workplace.
Many states prohibit employers from discriminating or otherwise taking adverse actions against employees for engaging in political activities, such as running for office or participating in political fundraising or political advocacy groups, if the activities are conducted outside of working hours, off the employer’s premises, and without the use of the employer’s equipment (such as computers).
These states include:
Some states prohibit employers from trying to influence an employee’s vote:
Others prohibit employers from keeping records of an employee’s political activities or prohibit discrimination based on political party membership:
Connecticut prohibits adverse actions against employees for exercising First Amendment rights if the actions do not interfere with performance.
Some states, like Colorado, have laws prohibiting employers from discriminating against employees for their lawful activities outside of work.
Issue #2: Strategies for Maintaining a Professional, Respectful, Productive Workplace
Navigating legal compliance related to regulating employee political speech and conduct is challenging.
Determining whether to regulate, and to what extent, presents a minefield of potential issues for employers to consider. A response too far in one direction (or not far enough, as the case may be) could upset the equilibrium of employee experience, inclusion, belonging, and morale.
A delicate balance exists between reducing workplace distraction versus allegations of insensitivity to a cause; preserving workplace peace versus creating a compliance police state; and responding to employees’ needs for action versus fulfilling clients’ requirements for neutrality.
There is no right answer. To respond as effectively as possible, employers must have a deep understanding of their workplace culture and consider all effects of action with eyes wide open.
Proactive Steps
To manage the balance, employers need options for an appropriate and desired response. Well-written, thorough workplace policies are the first step to creating these options.
From there, employers can chart a path forward for managing issues created by employee political speech and conduct affecting the workplace.
Employers should consider the following measures:
1. Determine Political Expression Policies for the Organization. Consider implementing a formal policy prohibiting employees from wearing political clothing or displaying political posters in their workspace.
Any such policy must be enforced uniformly, regardless of an employee’s role within the organization or political point of view. The policy should make clear that it is not intended to prevent employees from discussing their working conditions or otherwise engaging in protected concerted activity.
2. EEO and Anti-Harassment Policies. Enforce equal employment, antidiscrimination, and anti-harassment policies. Make clear that any speech in violation of these policies will not be tolerated.
3. Diversity, Equity, Inclusion, and Belonging. Establish and reinforce a company culture that values diverse perspectives, equal opportunities, inclusivity, and belonging. Employees who understand and appreciate these concepts are more likely to respect views that differ from their own.
4. Additional Workplace Training. Consider offering additional management and employee training that reinforces the company’s commitment to professionalism, respect, and inclusion. Employers that provide this training can create a safe environment in which the election may be discussed without bullying, harassment, and other negative behavior.
Reactive Strategies
When proactive steps do not prevent political activity from disrupting productivity or hurting the company’s public image, and this activity becomes offensive; breaks the law; or impacts policies, workplace morale, culture, inclusivity strategies, talent recruitment, or retention, it is up to the employer to act — or to CLAP:
1. CONSIDER the problem. What specific political speech are we addressing?
2. LAW. Is a federal law such as NLRA, Title VII, ADEA, ADA, or GINA implicated? How? Is state law implicated? How? Is a contract such as a collective bargaining agreement implicated? How?
3. APPLY POLICY. Is a policy such as the antidiscrimination policy, the anti-harassment policy, the policy prohibiting employees from wearing political clothing or displaying posters, or the performance or productivity policies implicated?
Policies were established to address political speech impacting the workplace or the law — apply them uniformly. Employees and management were trained proactively for this reason.
If the speech impacts the company’s antidiscrimination policy, investigate the allegation and take appropriate action.
If the speech impacts the company’s anti-harassment or hostile work environment policy, investigate the allegations and take appropriate action.
If the speech impacts the company’s policy prohibiting employees from wearing political clothing or displaying political posters in their workplace, enforce the policy.
If the speech impacts productivity, address performance consistent with policy.
If use of company resources is the issue, such as regarding social media, apply and uniformly enforce policy that clarifies the limits on the use of company resources.
As with other workplace policies, consistent enforcement is critical to mitigating risk.
Now That You Know: Key Takeaways
While prevention of all political speech in the workplace may not be realistic, proactive steps can be taken now to prepare policies and train management and staff to follow those policies to mitigate risk.
When policies are impacted, careful analysis of the political speech and uniform, consistent application of existing policies is critical to maintaining a respectful and professional work environment within the law.
Authors: Ana C. Shields, Principal, and Christopher M. Valentino, Principal (Jackson Lewis)
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