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Office politics: why you shouldn’t care who likes Ike

by Timothy M. Barber

With another round of contentious elections upon us, employers should brush up on federal, state, and local laws related to political affiliation discrimination. 

The political season
Fall in America: football, brightly colored leaves falling, and another cycle of contentious elections. Recent elections have involved important issues affecting businesses and employees—issues that rile the passions of people on both sides of the aisle. Discussing political issues or displaying political affiliations in the workplace can result in lost productivity, personnel issues, or damage to a business’s public perception.

Political disagreements at work can also lead to claims of discrimination because discussions about politics or candidates may include comments on race, gender, religion, and other hot-button topics involving protected classes. Thus, employers should be mindful of federal, state, and local laws addressing discrimination based on political speech and political association.

Generally, no right to free speech at work
Many people believe that employers must allow workers to discuss politics at work or display political pins or signs because they have a First Amendment right to free speech. This common belief is wrong. The First Amendment to the U.S. Constitution prohibits government restrictions on speech. With certain exceptions noted below, there is no federal law that requires private employers to allow discussions of politics in the workplace. And quashing such discussions could give rise to claims of discrimination under many states’ laws.

Not surprisingly, many employers have adopted policies prohibiting employees from displaying political paraphernalia, sending political e-mails, or discussing politics at work. As long as they comply with applicable federal, state, or local rules and are enforced even-handedly, such policies are generally enforceable.

Exception for issues related to working conditions
One big exception to the “no free speech at work” rule is the National Labor Relations Act (NLRA), which prohibits employers from limiting employee discussions on issues related to pay, benefits, and working conditions. Such communications fall within the definition of “protected concerted activity” under the NLRA, and the law applies regardless of whether employees are part of a union.

Also, the prohibition on stifling protected concerted activity doesn’t just apply to face-to-face communications. The National Labor Relations Board (NLRB) has taken the position that employers cannot discipline employees for posting comments on social media or using workplace computers to discuss pay, benefits, or working conditions. However, such speech is protected only if it relates to the terms and conditions of employment.

While the NLRA is seemingly straightforward, it creates many gray areas during an election cycle. For instance, although you can otherwise prohibit employees from discussing political candidates at work, the situation becomes much more complicated if one of the candidates is running on a platform that addresses employment issues. You may be able to discipline an employee for violating a “no politics at work” policy by urging others to vote for Candidate X, but you would likely face an unfair labor practices charge from the NLRB if you disciplined an employee for saying, “Vote for Candidate X because she will raise the minimum wage and supports the Affordable Care Act.”

Discrimination based on political affiliation
Just as there is generally no federal law prohibiting employers from limiting political speech in the private workplace, there is also no federal law that prohibits private employers from discriminating against workers based on their political affiliation. However, you should tread carefully in this area for several reasons.

First, because political affiliation can be tied to issues involving race, gender, religion, labor relations, and other federally protected classifications, it’s very easy for discrimination based on political affiliation to be perceived as unlawful discrimination based on a protected characteristic. That’s particularly true in light of the common use of charged epithets when people discuss their political opponents (e.g., “right-wing religious zealots” or “commie union thugs”).

Second, discrimination based on political affiliation may violate state and local laws. Even when there isn’t a law specifically addressing political affiliation discrimination, some states expressly prohibit employers from allowing an employee’s lawful off-duty conduct (such as participating in political activities) to have any effect on the terms and conditions of her employment.

Bottom line
Employers have legitimate concerns about the effect of political activity in the workplace. You can limit disruptions to your business by having clear neutral policies that prohibit employees from discussing political issues or candidates at work or engaging in political activities, with certain exceptions.

First, any “no politics at work” policy must contain an express carve-out for communications and activities protected by the NLRA. Second, such policies should be applied even-handedly to avoid potential discrimination claims. You should also ensure that managerial employees are trained to know that initiating unwanted political discussions can result in claims being brought against the company. Finally, you may wish to consider periodically reminding employees about your policy as election season gears up.

Tim Barber is an attorney with Axley Brynelson, LLP in the firm’s Madison, Wisconsin, office. He may be contacted tbarber@axley.com.