A version of this article was originally published in the September 2016 issue of The HR Specialist. It is reprinted here with permission.
The 2016 presidential election season has been particularly divisive, with candidates trading insults on a regular basis. Naturally, conversations about politics and candidates spill over into the workplace. A recent survey conducted by the Society for Human Resource Management (SHRM) reported that 26 percent of respondents felt that there is greater political volatility in their workplaces this year in comparison to previous election years. Because one’s politics are often part of his or her personal identity, almost any political discussion at work can be offensive to someone. Charged political discussions can also raise the workplace temperature and negatively affect productivity and morale. Perhaps for those reasons, a majority (72 percent) of organizations that responded to the SHRM survey said that they discourage political activities in the workplace.
Existing Employee Protections
Many people wrongly think that the First Amendment entitles them to express their political views whenever and wherever they wish. But there is no constitutional right of free speech in a private employer’s workplace, absent contrary state law.
Some existing federal, state and municipal laws do impact political discussions in the workplace. Political talk may not create a hostile work environment based on legally protected characteristics, including race, color, sex, religion, national origin, disability, age (for workers 40 and older), genetic information and ancestry. Today’s hot-button political issues often intersect with religious beliefs. Political discussions about those issues — like abortion rights — could be viewed by some employees as harassing based on their religious views. Similarly, political positions may offend employees in certain protected classes; for example, vocal support for a candidate’s position that transgender employees should not be able to use the restroom associated with their gender identity may be offensive to LGBT employees.
In addition, the National Labor Relations Act (NLRA), which is generally thought of in connection with unionized workplaces, protects some forms of workers’ political advocacy whether the workers are unionized or not. The National Labor Relations Board views political discussions as a “protected concerted activity” to the extent that they relate to employment terms or conditions, such as a specifically identified employment concern. For example, discussion about the candidates’ differing views on the minimum wage would be protected by the NLRA because it affects employees’ pay. The NLRA does not protect advocacy supporting purely political issues or candidates that is not tied directly to employment-related concerns. If the political advocacy occurs during work time, it can be restricted by lawful and neutrally applied work rules, such as those prohibiting solicitations during work hours.
Should Employers Have a Policy Addressing Political Discussion?
Consider drafting a policy that prohibits inappropriate comments and minimizes distractions, yet allows respectful political discourse. Advise managers and supervisors not to discuss their personal political views with subordinates, and train them to recognize that certain types of political speech can lead to a hostile work environment. Avoid restrictions on off-duty political activity. Pennsylvania, unlike many other states, does not have an off-duty conduct law, but it is still advisable not to intrude into an employee’s private life unless it affects the workplace.
A political discussion policy, depending on the workplace and the nature of a company’s business, can include:
a statement that employees have the right to vote for the candidates of their choice.
an adaptation of any existing non-solicitation policies to restrict political solicitations during work time. For example, the policy could prohibit the display of political messages that are visible to customers or open campaigning in work areas. Political campaigning should be treated the same as other types of non-work-related solicitations.
cautions that political talk that creates a hostile work environment will not be tolerated.
a provision that requests for time off to volunteer on a political campaign or to attend a rally will be considered and granted neutrally, i.e., in the same way as any other request for time off for any other reason.
a statement that an employee’s political views should not influence his or her performance reviews or eligibility for promotion.
Whatever position an employer decides to take on political discussion in the workplace, employers should enforce any policies consistently and not be tougher on employees who express political views that are different from the company’s views.
The material in this publication was created as of the date set forth above and is based on laws, court decisions, administrative rulings and congressional materials that existed at that time, and should not be construed as legal advice or legal opinions on specific facts. The information in this publication is not intended to create, and the transmission and receipt of it does not constitute, a lawyer-client relationship.