When a single Starbucks® employee refused to yell out “Trump”—the name a customer gave when placing an order—he made national headlines and set off a social media protest against the company.
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For employers, it’s difficult enough to handle political disputes between coworkers; when customers or vendors are involved, things can become nasty—and public—quickly.
Thomas J. Lloyd of Greener Burke Shoemaker Oberrecht, P.A., says proactive policies and training are key to keeping things civil in the workplace.
Be Proactive
Employers should first adopt a policy on employee political activity, Lloyd told BLR®; “It is very difficult to establish policies in a reactive, as opposed to a proactive, manner.”
While any incident will have to be dealt with individually, a universal, consistent policy is vital, he said, particularly during volatile periods like the weeks following a highly contentious election.
Policies should apply to all employees, regardless of their position with the company and without respect to their political leanings, said Lloyd. But there’s no one-size-fits-all policy. “[P]olicies are going to be different from company to company, depending largely upon the needs of the company and the extent to which it may be damaged or may benefit from its employees’ involvement in political activity,” he said.
Policy Specifics
Generally, it’s a good idea to impose at least some limits on political activity, Lloyd said. This can reduce conflict and ensure that employees are focused on business.
Some employers opt to adopt strict policies, prohibiting workers from identifying themselves as employees of the company on social media. Lloyd said this has the obvious benefit of ensuring that political perceptions aren’t attributed to the company, but it also means that employees aren’t advertising services to friends and family, who can be an important audience.
But even if you don’t go that route, it’s a good idea to tell employees that if they choose to affiliate themselves with the company on social media, they’re effectively choosing to become ambassadors for the company during their free time, Lloyd said. “As ambassadors, their conduct on social media can be fairly assessed by the employer in a similar manner as if the employee had [engaged in] the same conduct out loud in the workplace.”
Employers also need to be prepared in case debate crosses the line into harassment or violence. In this case, zero-tolerance policies are best, Lloyd said. Employers need to make clear that harassment or violence—whether motivated by political affiliation or any other characteristic—will not be tolerated on any level, he said.
Consider Customers, Vendors
To avoid a situation like the one that occurred at Starbucks, employers need to regularly ensure that employees who have interaction with customers, vendors, and the public understand company policy.
Customers and vendors can be quick to take their business elsewhere and to air grievances on social media, Lloyd said, citing the Starbucks incident and a similar protest launched against New Balance. “These examples highlight the necessity of employers to be very mindful of how even a single employee or a single message can create disastrous effects for the company,” he said.
Outside Activity
Employers also may want to make clear that the same standards apply to conduct outside of work—if an employee chooses to associate himself or herself with the company through social media or by wearing company apparel, for example. “As an ambassador for the company, employees may be expected to meet standards of conduct whenever the company can be identified,” Lloyd explained.
This doesn’t necessarily mean you need to monitor every employee’s Twitter account, but it does mean you should conduct training, with an emphasis on the difference between respectful political discussion and inflammatory rhetoric that may reflect badly upon the company, Lloyd said. “Such training, combined with a signed acknowledgment from the employees, is likely to protect the company if an employee’s questionable political activity ever does go viral.”
Other Considerations
If a workplace is unionized, employers should be aware that limitations on political activity may be construed as illegal interference with employees’ protected rights to participate in concerted activity, according to Lloyd.
The same can be said of nonunionized workplaces. There tends to be a lot of crossover between political activity and union activity, so curbing the former can run dangerously close to illegally curbing the latter, Lloyd said. The National Labor Relations Board (NLRB) has, in recent years, taken an interest in cases where employees were discussing working conditions such as compensation, even where no unionization efforts were present.
And if you’re a public entity, things are even more complicated. You may have a legal obligation to remain nonpartisan, Lloyd said. But many public employees also have some First Amendment protections. “The crux of the question comes down to whether the employer … has elected to impose a Constitutionally permissible and neutral policy against political expression by employees,” which not all public entities or agencies may elect to or be required to do, Lloyd said.
The U.S. Supreme Court has stated that while public employees’ political activity cannot ever be completely curtailed, public employers can prohibit certain activities to safeguard “the impartial execution of the laws” and to “reduce the hazards to fair and effective government,” Lloyd explained.
Additionally, some states and municipalities have enacted laws that protect political affiliation. Before you implement strict prohibitions or take an adverse employment action against an employee because of his or her opinions, be sure to check state and local laws.
What’s Next
It’s unclear what changes federal agencies will make to their positions under President-elect Donald Trump’s direction, but things will change, Lloyd said; “that is a near-absolute political certainty.”
For example, the NLRB’s new focus on nonunionized workplaces could be on the chopping block. Trump is “filling his cabinet with individuals who have at various points in their careers spoken out very strongly against the various agencies that they may now lead,” Lloyd said. “If changes at the EEOC and the NLRB are anything like where it appears the Department of Labor is going, those changes may be more serious than we can presently predict.”
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Kate McGovern Tornone is an editor at BLR. She has almost 10 years’ experience covering a variety of employment law topics and currently writes for