It’s an election year, and this year’s race has sparked some contentious debates. Tensions are high amidst media frenzy, and many Americans agree that this election will make or break the nation. Unfortunately, they do not agree on which candidate will do the “making” and which one will cause the “breaking.” It’s the perfect storm of passionate opinions and conflicting ideologies that can and will enter many workplaces.
As November 8 nears and emotions run high, what can employers do to ensure that the work environment is not consumed with political discord? One option might be to ban all political conversation in the workplace. But, do employers have this “right”? Or, does the First Amendment protect an employee’s right to discuss politics in the workplace?
It is a common misconception among employees that the First Amendment unequivocally protects their “right” to discuss whatever they choose, whenever they choose. In most states, this is not true for private workplaces. Generally speaking, employers are free to impose working terms and conditions that place limitations on speech in the workplace.
Common examples include prohibitions on vulgar, abusive, threatening, or discriminatory language and sexually harassing comments and jokes. These “limitations” on free speech are perfectly legal and, in many cases, required by law. In companies with policies that prohibit such language, the penalty for engaging in “free speech” that violates such company policies is — you guessed it — termination.
Similarly, employers in states other than Connecticut* can adopt policies that prohibit political discussions in the workplace as a term or condition of employment. The key is to ensure that any such policy is enforced equally among all employees so it does not give rise to complaints of favoritism or claims of discrimination or retaliation.
Although you may have the right to enact a complete ban on political discussion in the workplace, such a policy may not be very popular among your employees, or you may prefer to permit such discussions. If you do, how can you prevent that “perfect storm” from breaking out? Be prepared to take immediate action if an employee who engages in passionate political discussions or activities violates other policies, such as:
- A dress code that prohibits employees from wearing clothing with a political, religious or sexual message.
- Nonsolicitation policies that prohibit employees from wearing buttons or pins on their clothing, soliciting donations from coworkers for private causes, passing out flyers or posting notices on a company bulletin board.
- Antidiscrimination policies that prohibit harassment, discrimination, and retaliation based on a protected class, such as religion or race — two topics that can easily enter into political conversations or debates.
- General performance policies that require employees to work productively without distracting others while they are working.
- General conduct, bullying, or antiviolence policies that prohibit employees from threatening or intimidating their coworkers for any reason.
- Coaching or disciplining employees for violating a dress code or solicitation policy or for a lack of productivity due to social conversation with coworkers is much less controversial than disciplining an employee based on the expression of their political opinions.
What about a politically outspoken employee whose views you disagree with? Can you fire someone because of his or her political affiliation?
Depending on the state you are in, taking employment action based on the political expressions of an employee could run afoul with laws that prohibit discrimination and/or retaliation based on political affiliation. For example:
California, New York and the District of Columbia explicitly prohibit discrimination against applicants and employees based on political affiliation.
California, Colorado, New York and North Dakota have broad “lifestyle” antidiscrimination regulations that prohibit private employers from basing employment decisions on lawful conduct that occurs outside the workplace. In these states, if an employer takes employment action against an employee on the basis of his or her political affiliation, there is potential for an allegation of illegal discrimination against the employee’s lawful off-duty support of a candidate.
California, Colorado, Illinois, Louisiana, Minnesota, Missouri, Nebraska, Nevada, New Mexico, New York, South Carolina, Washington and West Virginia prohibit private employers from retaliating against employees who engage in various types of political activities.
The District of Columbia, Iowa, Louisiana and Puerto Rico prohibit employers from discriminating against an employee based on party membership, endorsements and/or affiliation. A number of states also have laws that prohibit threatening, intimidating and/or retaliating against individuals who sign political petitions, make or refuse to make campaign contributions or run for political offices. These laws likely cover employment-related threats or intimidation on this basis.
Given the extent of employment laws and regulations pertaining to political affiliation, to minimize the potential for a claim, ensure that all employment decisions are job-related, nondiscriminatory, and unrelated to political affiliation or actions outside the workplace.
If you permit political conversations, make certain that managers understand the difference between permissible activities and conversations and those that may violate company policies.
And there’s something else to think about, too. Thirty-one states have voting leave laws that require employers to provide time off to vote during the workday to employees who do not have ample time to do so before or after work when polls are open. Many of the states require employers to pay for the voting leave. Before denying an employee time off to vote during the workday, be certain that your state does not require voting leave.
If you haven’t done so already, take time to educate your managers about your company policies pertaining to voting leave, employment decisions based on political affiliation and political conversations in the workplace. If you permit political conversations, make certain that managers understand the difference between permissible activities and conversations and those that may violate company policies. Making sure that everyone is on the same page before an issue arises can minimize risk, save time and ensure that the matter is effectively resolved should the perfect storm erupt in your workplace.
*Employers in Connecticut must tread carefully in this arena. A state statute prohibits disciplining or terminating employees who exercise any rights guaranteed by the First Amendment, if the activity does not substantially or materially interfere with the employee’s job performance or the working relationship between the employer and employee.