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Political speech in the workplace

by Thomas J. Lloyd III

This election season has already proven to be, in certain respects, more animated than any that has ever come before. An ever-changing political landscape, fueled in large part by social media activism, has brought once-foreign political issues directly into the homes and workplaces of nearly every American. As the primaries continue to heat up and general election season nears, it’s worth reviewing the extent to which employers can regulate political activity in the workplace, to maintain productivity and avoid potential fistfights around the watercooler. 

Free-speech rights
Perhaps the most frequent question asked by employers is whether you are bound by the First Amendment’s guarantee of free speech to allow employees nearly unfettered expression of political viewpoints in the workplace. The good news (especially for private-sector employers) is that the U.S. Supreme Court has consistently held that freedom of speech is not an unbounded right, and it may be appropriately regulated as necessary. Moreover, the First Amendment applies to state action (in other words, action taken by some arm of the government), so a private-sector employer has little to be concerned about with regard to the interplay between an employee’s freedom of speech and its interest in productivity. In some states and municipalities—including California, Louisiana, New York, the District of Columbia, and the cities of Lansing, Michigan, Madison, Wisconsin, and Seattle, Washington—political affiliation is a protected class just like race, age, and disability, even for employees who work in the private sector.

The primary function of the workplace (and the primary interest of an employer) is to ensure a productive workforce. In most states, employers have the discretion to permit or prohibit political speech, including nonverbal speech such as displays of political propaganda (buttons, T-shirts, stickers). Especially in today’s political climate, there are ample and justifiable reasons to regulate such behavior.

However, the option to curtail political speech in the workplace does come with certain qualifications to ensure fair treatment of employees and viewpoints. Although federal law prohibits you from discriminating against employees based on their political viewpoints, there are potential dangers (discussed below) that could land you in hot water if you’re matched up against a skilled attorney and the right (or wrong) set of circumstances.

Therefore, as with most HR issues, you should be careful to appear fair in whatever regulations you choose to impose in the workplace. For example, it’s a good practice not to prohibit political speech or propaganda only as it pertains to one political party. In other words, whatever your political leanings, you shouldn’t show favoritism or leniency to supporters of one particular party or candidate.

Being fair can be much more complicated than simply ensuring that supporters of all political parties and candidates are treated alike. Indeed, you should maintain an even-handed approach to issues and causes as well. If you allow some political speech, you must permit the expression of all viewpoints. Thus, electing to permit political speech in the workplace has the potential to become a veritable Pandora’s box of HR nightmares, depending on the viewpoints and passions of your workforce.

Protected concerted activity
In regulating employees’ expression of political viewpoints during an election year, you must be especially vigilant about at least one significant danger. Although employers do have the ability to control many types of expression to ensure peace and productivity in the workplace, there can be a precariously fine distinction between permissibly regulating political expression and impermissibly interfering with employees’ rights under the National Labor Relations Act (NLRA).

Although no state or federal law prohibits Idaho employers from interfering with political speech in the workplace, the NLRA still forbids you from restricting employees in the exercise of their right to engage in concerted activity. Thus, you should be aware of important legal subtleties. Consider the following examples:

Example 1: An employee places a poster on the community bulletin board in the break room that says, “Vote Candidate A: the Only Candidate Who Has Vowed to Increase Wages for the American Worker.”

Example 2: An employee places a poster on the community bulletin board in the break room that says, “We Need to Fight for Better Wages! Join Me in Working to Elect Those Who Will Fight for Us!”

Virtually the same message is being conveyed by each employee. However, your response may need to be very different under the NLRA.

While Example 1 is fairly obviously an exercise of pure political speech that may be regulated in the workplace, Example 2 leans much closer to being a protected solicitation of fellow employees to engage in concerted activity to improve working conditions (wages). You should seek the advice of counsel when you’re faced with any questionable exercise of speech by employees, given the penalties that may be imposed if you’re found in violation of the NLRA.

Expectations for employee behavior
Although questions about employees’ exercise of free speech arise in many contexts in the employment realm, the political season tends to give those questions an extra bit of flair. Whether on social media, in communications with customers or clients, or even in personal interactions with everyday people on the street, employees bear the role of ambassador for their employer and can be justifiably expected to act in accordance with that role. While you cannot completely restrict or control an employee’s political activity outside the workplace, it’s fair to have certain behavioral expectations.

Even if your state or municipality have no law that prohibits employers from setting behavioral expectations for employees, including for conduct outside the workplace, those expectations shouldn’t coerce employees toward any particular political affiliation. Additionally, as with most workplace policies, any set of expectations should be uniform, irrespective of political affiliation, to prevent allegations of wrongful termination in violation of public policy.

In other words, while there may not be a specific law that prohibits the imposition of behavioral guidelines in the workplace, a good lawyer and a sympathetic judge may still find a way to hold your company liable if the facts suggest an endemic system of political favoritism. A court is more likely to rule against you if your expectations appear to change depending on whether you approve of employees’ political conduct.

As with all HR policies, it’s best to have employees’ written acknowledgment of your expectations to avoid allegations that your expectations were merely a pretext for an impermissible discriminatory action. Having employees execute an agreement setting forth your standards of conduct and your reasons for implementing them is the best weapon against claims of wrongful termination or other types of discrimination.

Bottom line
Although the political season may give rise to a number of disruptions, interruptions, annoyances, frustrations, and irritations in many aspects of our lives, it should at least be comforting for employers to know that heated debates about where a candidate was born can (and should) be left in the parking lot!

Thomas J. Lloyd III is a partner at the law firm of Greener Burke Shoemaker Oberrecht, P.A.. He may be contacted at tlloyd@greenerlaw.com.