Navigating Free Speech and Politics in the Workplace

With election day approaching, the complex political environment can boil over in conversations between employees at the workplace. Many employers are confronted with the question of how to manage a workforce with diverse, potentially divisive, political and social beliefs. Political speech in the workplace could put a damper on employee morale, affect working arrangements and, ultimately, have an impact on productivity.

What can an employer or organizational leader do when dealing with the question of political speech in the workplace?

Not taking a stance on political speech in the workplace is, itself, a stance. Having a well-defined plan and policy in place will help ensure instances of political speech do not violate compliance obligations and are dealt with fairly and efficiently.

Here are some considerations for developing a plan and policy to address political speech in the workplace.

Can Employers Restrict Political Speech in the Workplace?

Some employees may believe that the First Amendment right to freedom of speech applies to their speech in the workplace. Subsequently, employers may inadvertently allow speech activities that have a negative effect on the workplace out of fear of violating the employees’ rights.

It is important to know that the First Amendment protections on speech apply to government action only. So, for private employers, there is no constitutional protection for workers’ to freely express their political views while working for a non-government business. Private employers may restrict employees’ speech in the workplace — with some limitations.

The National Labor Relations Act (NLRA) is a law that provides non-supervisor employees the right to engage in “concerted activities for purposes of mutual aid or protection.” This has been interpreted by the courts to refer to communications between employees that is related to wages, hours, working conditions, and other issues related to their employment.

In instances where employees are engaged in these types of concerted activities, an employer should avoid restrictions. Employers should consider specifically excluding protected, concerted activities as defined by the NLRA in any policy or communications related to speech controls.

Additional Laws Related to Free Speech at Work

While the NLRA provides some specific protections, other laws may broaden the scope depending on the circumstance.

• Equal Employment Opportunity (EEO): EEO laws, while not directly protecting political speech or activity, could apply if a political interaction involves membership in a protected class. Claims of discrimination, harassment, or retaliation could be triggered even in circumstances where political discussion takes place at work despite company policies.
• Title VII: Employees could evoke Title VII of the Civil Rights Act if they are able to show that a negative action regarding employment occurred based on a protected characteristic or if there was a reaction to political speech that was based on a protected characteristic. Keep in mind also that workers who feel like they were unjustly treated could take to the internet to damage an employer’s reputation.
• Local regulations: In most states, it is lawful for private employers to refuse to hire or take other employment action due to a worker’s political beliefs. There are some states that provide greater protection for personal, political views of workers, so it is important to explore any state or local laws that may apply to your business. Even if they do not have any legal recourse locally, workers may seek retribution against a business for such negative employment action.

Other Political Activity: Voting Leave and Off-Duty Conduct

While there is no federal requirement, employers may have to follow state or local laws requiring that employees have some ability to vote. There is considerable variation in these laws from state to state; check out Paylocity’s guide on state voter leave laws for more information.

Outside of voting leave, some state and local laws prevent enforcement of rules or policies that restrict an employee from engaging in lawful activity outside of working hours. This includes participation in the political process. These laws could protect political speech or activity — even candidacy for an elected office. Be sure to consider any state or local laws regarding voting leave and off-duty conduct when creating rules or policies related to political speech.

Developing Plans, Policies, and Procedures

Taking the time to thoughtfully consider the applicable rules and regulations that apply to political speech in the workplace will help ensure your plans or policies align with those obligations. Better yet, it sets up your employees to successfully navigate the election season. The following strategies will help you avoid some of the stress during a political season.

Craft a Clear Policy on Political Speech in the Workplace

A well-crafted, written policy should communicate your organization’s expectations about political speech to your employees. Any such policy should account for communication and activity that is protected under the NLRA, avoid unlawful discrimination, and consider any other state or local rules.

Written policies can serve as a starting point, but talking about your expectations and providing training will help employees understand why the policies are in place and how to apply them every day in the workplace.

Train Management to Identify Inappropriate Speech

Supervisors and managers are in the best position to identify improper speech in the workplace.

Consider training these employees about your organization’s expectations and develop a reporting procedure so they know what to do if a concern has been identified.

Having a workplace investigative procedure is also helpful. When followed, the procedure can minimize the potential negative or unequal outcomes when taking employment-related action against an employee who violates company policy involving political speech in the workplace.

Political speech is a difficult subject to navigate in and out of the workplace. By developing a plan to establish company expectations, you can set up your workplace for a respectful and successful election season.