As election season heats up, we thought it would be worthwhile to remind you about important issues to consider when you’re dealing with discussions about politics in the workplace. We hope our readers will relate to the experiences of Gertrude, the fictional HR director featured in this article.
The phone call
Gertrude Toklas, Acme Company’s longtime director of HR, had arrived at work early one morning in October and was rewarding herself with a full- fat latte and a sticky bun for faithfully attending an early morning spin class. Just after she had taken her first bite, the phone rang. She checked the caller ID, as always, and sighed when she saw that it was morning shift production manager Scott Hemingway, who called only when the fire was raging completely out of control and didn’t know the meaning of preventive management. She didn’t want to answer but knew she had to or the lid might blow off completely. “Hello, Scott,” she said rather despondently. “What’s up?”
“I’ve got a problem down here,” said Scott. “You know the third presidential debate was last night, and I’ve got two guys about to strangle each other over it. Apparently, they started discussing it on their break, and the discussion turned ugly. I told them to stop it and go back to work, but one of the guys, Jack Fitzgerald, said that he was still on his break and I couldn’t tell him what to say or not say because he has constitutional rights. What can I do?”
Gertrude asked, “Who was the other guy involved?” Scott replied, “It was Larry Steinbeck―you know, the Tea Party guy.” Gertrude sighed; she knew that Jack was a strong union man and a New Deal liberal Democrat. It was no surprise that he and Larry had gone at it after the rancorous debate on television last night. She became a little depressed as she drifted a bit, thinking about the sorry state of political discourse these days. She then snapped out of it. “Scott,” she said, “Get those guys up here at 10:00 a.m. I want to talk to them. You come, too.”
It was only 8:15 a.m., but Gertrude wanted a little time to gather her thoughts and, more important, call her lawyer, Victoria Lewis, to make sure she was on the right track. Luckily for her, Vicky was in the office. “Vicky,” she said, “I’ve got an ‘opportunity’ I need to ask you about.” She then told the lawyer about the situation. Vicky responded, “Gertie, your timing is perfect. Last week I read an article about this very thing, and it sparked the idea in my head that I really ought to bone up on this stuff because someone like you probably would be calling after the debates because of the heated political climate. So at least for once, I know what I’m talking about.”
“That’s great! So what do I do? What can I do?” exclaimed Gertrude. “Let me send you a short memo I wrote in the last few days. You can read it in just a few minutes, and if you have any questions after reading it, just give me a call,” Victoria said. “Thanks, Vick,” Gertrude replied gratefully. “You’re a lifesaver.” In just a few seconds, her in-box dinged, announcing the arrival of Victoria’s memo. Gertrude sent it to the printer, heated her now-cold latte in the microwave, and sat down to read it.
To: Labor & Employment Department
From: Victoria Lewis
Date: October 1, 2012
Subject: Politics in the Workplace
This will summarize my recent research and conclusions regarding issues likely to arise in the workplace as a result of the presidential election season and the associated heightened political temperature. Questions from our employment law clients arising from political tensions in their workplaces are very likely. According to published surveys, 36 percent of workers report discussing politics at work. Of those, approximately 20 percent said that their discussions led to heated exchanges or fights (presumably verbal) with others. Taking those two numbers together, we can say that 7.2 percent of employees likely will be involved in some sort of heated altercation over politics at work. This obviously will result in clients soliciting our advice.
First, the basics: Our clients are private employers; they have the right in most states to prohibit political speech entirely in their workplaces. The U.S. Constitution’s First Amendment protections apply only to “state action,” not to nongovernmental employers. Even though some states have no state law protecting any right to speak in the workplace, some states do, so be sure to ask state-specific questions, and don’t assume that a general nationwide rule applies.
California and Louisiana, for example, have passed statutes that protect political activity by private employees. Connecticut and South Carolina have very broad speech protections that apply even in the absence of state action. Some other states, such as California, Colorado, New York, and North Dakota, have statutory protections for employees’ off-duty political activities. Even if your client isn’t in one of those states, however, it’s a very bad idea in my view to take any action against an employee for off-duty political activity, and I would always counsel against it.
However, in most other states, an employer can regulate political speech in the same manner as it may want to regulate any other kind of speech. It’s a good idea, in fact, to have a broad, even-handed, and evenly enforced policy regulating any kind of speech that’s likely to have a disruptive effect on the business. Any kind of speech reasonably perceived as solicitation (as political campaigning certainly would be) should be controlled, just like speech that would be described as religious proselytizing or soliciting for personal or other commercial reasons. And, of course, a violation of the policy can result in employee discipline.
In addition to having and enforcing a policy restricting speech, including political speech, our employer clients should by now have in place policies governing the use of employer-owned electronic communication devices, such as computers and cell phones or smartphones. Those policies should specify that these devices are owned by the employer, are to be used only for employer-related business, and may be monitored to ensure compliance with the policy. The client should at least think about specifically including political campaigning as a prohibited use of company property.
What about nonverbal speech? Campaign buttons, stickers, decals, hats, signs―that sort of thing? As long as the employer restricts the display of any non-business-related item across the board, it can restrict politically related items. A dress code can easily solve this problem. One exception should be noted: The National Labor Relations Act (NLRA) protects the display of union insignia at work, even if it’s associated with a political message. For example, an employee cannot be prohibited from wearing a button reading “UAW for Obama.”
There’s also the other side of the coin to be considered: Can an employer require or encourage its employees to support one side or the other? This can be a problem, particularly among our small-business clients, because company owners and managers can be somewhat “emphatic” about their political beliefs and can take the position that it would be in the employees’ interest to support the employer’s view. Part of the answer to this question depends on federal election law, and we’re not election lawyers. But federal election law generally limits attempts at political persuasion to a “restricted class,” defined as executive or administrative personnel who are paid on a salary basis and have what I will call “senior management” responsibilities.
Some states have laws governing employers’ ability to attempt to persuade employees to vote one way or another. New Jersey and Washington, for example, limit such employer activities. Several states have recognized a common-law right for employees to be free from their employer politically importuning them.
There’s another very good reason to restrict political speech in the workplace: Some superficially political speech can lead to liability under state and federal antidiscrimination laws. For example, if a supervisor espouses―out loud―that he could never support a Muslim candidate for president, a Muslim employee might reasonably perceive that supervisor to have an anti-Muslim bias, and the comment might be used as evidence of anti-Muslim animus if the employee files a claim because of some adverse employment action. Consider, too, how a 70- year-old employee might perceive a manager’s comment that a 65-year-old candidate is too old to be president or how a female employee might object to a supervisor’s comment that he could never support Hillary Rodham Clinton because you can’t trust a woman with the nuclear codes.
An employer cannot simply prohibit all speech that may touch on a protected class, however. For example, employers are required to accommodate religious practices, including the display of religious objects, if they don’t constitute an undue hardship for them. So while an employer in a manufacturing facility might be justified in barring employees from wearing any kind of jewelry that could increase the risk of injury, it couldn’t bar a cross pendant on a necklace in an office environment. Religious expression that’s offensive or harassing to other employees can and should be regulated, however. Subjects that touch on both politics and religion, such as abortion and same-sex marriage, are particularly volatile and should be carefully controlled by managers and supervisors.
Our clients should also be aware that federal election law restricts the ability of companies to provide resources for political campaigns. If an employer doesn’t have a nonsolicitation policy, employees may solicit campaign contributions at work (during breaks, of course). Supervisors may solicit contributions as well, as long as the request isn’t coercive. It’s my personal view that any request for a campaign contribution by a supervisor or manager to a lower-ranking employee would be coercive and should be prohibited. This is another good reason to have a strong nonsolicitation policy in place.
One final word: Thirty-one states have some statutory provision requiring employers to provide employees time off to vote.
All’s well that ends well
Gertrude reached the end of the memo and her latte at the same time. She looked at the clock on her computer and noticed that her meeting with the New Dealer and the Tea Partier was coming up in five minutes. She mused for a moment―and not for the first time―that a five-minute phone call to her lawyer had made her life so much easier than she thought.
Harold Pinkley is an attorney with Butler Snow’s labor and employment practice group in the Nashville, Tennessee, office. He may be reached at email@example.com.