We are but three months away from knowing who will be the new chief executive in the White House. Given the political discourse to date that could end up being a long three months. Both sides have been vocal, physical at times, and most workplaces would not be the appropriate forum for those kinds of activities. Can you ban employees from having political discussions at work?
What about “free speech”?
Many employees are under the impression that they can say whatever they want under the guise of “free speech.” This is a misperception on their part. On a federal basis the right to free speech applies only to their interaction with the government and not with their private employer. There is no constitutional right to discuss politics in the workplace. As attorneys deMeza and Jenero of Holland & Knight, LLP say:
“ Absent rights provided by one of the limited exceptions [of state or local law], there are no legal protections for political activities in the workplace, so private employers generally may refuse to hire, adjust pay/benefits and even discharge “at will” employees because of their political views. In short, ‘political discrimination’ often is not unlawful discrimination.”
Because of the potential for heated discussions in this election cycle and the emotionally charged issues of race, religion and gender employers may want to choose to ban political discussions to avoid accusations of discrimination or bullying due to someone expressing a point of view. It would be nice to assume we can all carry-on a conversation about these issues, but given the interactions I have seen on Facebook I don’t think polite discussion is going to be possible between opposing views this year. This policy can, and should, also prohibit campaigning, political buttons and signs, and political clothing that is of a purely political nature. However, items that can have a connection to working conditions may be under the jurisdiction of the NLRA.
There are however two possible exceptions to having such a policy.
Exception #1- National Labor Relations Act
As you know if you read this blog on a consistent basis, the National Labor Relations Board puts a number of restrictions on what employers can and cannot do based on their interpretation of “protected concerted activity. Generally these have to deal with wages, hours and working conditions and working conditions have been interpreted pretty loosely lately. So deMeza and Jenero tell us that non-supervisory “employees’ statements and actions concerning political issues and events may be protected by the NLRA if there is a sufficient connection to the workplace or to employees’ terms and conditions of employment.” Before you discipline an employee’s violation of the banned political discussions policy make sure there is not a connection with their protected concerted rights. In fact in the “no political discussions” policy you may want to include a final line that indicates “nothing in this policy is meant to activity lawful under the NLRA.”
Exception #2- State Laws
Federal law is not the sole determiner of employer and employee behavior. State law is also a yardstick by which employers need to gauge their behavior. States that have some legislation that has some aspect of political activity include:
- Colorado, which as many restrictions on what an employer can and cannot do
- Connecticut, which prohibits disciplining or attempting to influence employees’ political views
- District of Columbia
- New Jersey
- New York
De Meza and Jenero recommend that employers check with appropriate local counsel to see what the prohibitions are in these states.
By the way, a word of advice, the prohibition against political speech needs to extend to the top. Management should not use their power and position to espouse a particular political stance if they are not allowing employees to do the same.