Employer’s Perspectives on Political Discourse at Work
With the presidential election around the corner, employers should expect to see a rise in political discussions at work, if not already. Politics and religion are no longer taboo topics in the workplace. Employee Political Discourse
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As a first matter, federal law in most cases does not protect employees from private employers’ actions. The First Amendment of the United States Constitution protects only speech from government action. While public employers need to be mindful of the First Amendment, it does not have any impact on private employers and their relationships with their employees.
However, numerous states and localities prohibit discrimination based on political views, speech, and affiliation. Employers need to be familiar with any laws that might exist in the jurisdictions where their employees live. This is becoming more difficult due to the popularity of remote working. Also, government contractors are subject to additional restrictions when it comes to taking action against their employees because of political views or speech. The National Labor Relations Board may interpret political discourse as protected concerted activities depending on the context and content of the employee’s speech. If an employee expressed support for a candidate based on the candidate’s views on these issues, responsive action by the employer could implicate a potential violation of NLRA. If an employee expressed support for a candidate based on the candidate’s views on these issues, responsive action by the employer could implicate a potential violation of the NLRA.
As a side note, it has long been a best practice for employers to have clear, NLRA-compliant policies in place outlining the framework for permissible and impermissible solicitation and distribution by employees in the workplace.
Employment action in response to political discourse involving a trait protected by federal, state, or local anti-discrimination laws such as race, sex, disability, national origin, and religion, could be construed as illegal discrimination. Administrative agencies or courts may view political discourse as a proxy trait, bringing the situation under the scope of antidiscrimination laws. Many states and municipalities have laws that restrict employers’ access and limit their ability to take action against employees’ social media posts. Employers should have detailed social media policies in place, especially if they may take action based on an employee’s social media posts. Employers should have detailed social media policies in place, especially if they may take action based on an employee’s social media posts.
Additionally, employers should consider the impact that banning political discourse might have on employee morale and workplace culture. Political discourse can be distracting, and cause division. A complete ban on political expression may result in resentment among employees, especially since many people feel a strong connection to political issues. Employer Political Discourse
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Employers do not have to refrain from expressing their political views in the workplace. Before engaging in political discourse, employers and supervisors must consider the unintended consequences of their words. Depending on the content and effect of an employer’s or supervisor’s political speech, the employer or supervisor runs the risk of violating the NLRA’s protection against concerted activity as well as federal and state laws which prohibit voter intimidation and can carry significant criminal penalties.
Recommendations
Employers should clearly communicate their expectations to employees regarding workplace conduct generally, and should uniformly enforce their carefully drafted policies. It would be a great time to remind employees about the harassment and professionalism policies. Employers should also consider discouraging supervisors from having political discussions with subordinates to reduce the risk of discrimination, NLRA, and voter intimidation claims.
Ultimately, before engaging in political speech or taking action based on the political speech or views of an employee, employers should consult legal counsel to avoid any unexpected pitfalls. Please contact a member from the McNees Labor & Employment Group if you have any questions about how to deal with a situation involving a political discourse at your workplace.
