Politics in the Workplace: Preserving Employee Productivity and Harmony During Election Season

Everyone has experienced "workplace politics" (in which Type A employees claw their way to the top ahead of co-workers) as well as "politics in the workplace" (in which employees argue about candidates for office and political issues of interest).

A 2016 study by the American Psychological Association found that political discussions in the workplace resulted in 28 percent of younger workers feeling stressed, 23 percent of all workers feeling more isolated, 25 percent experiencing increased hostility in the workplace, and 27 percent experiencing at least one negative outcome. "Politics in the workplace" can cause diminished productivity and customer service. In considering their options, private employers should recognize that two commonly held beliefs about "politics in the workplace" are, in fact, simply misconceptions.¹

Misconception 1: Employees Must Be Allowed to Talk "Politics" at Work

Wrong. Employees (and many employers) commonly but mistakenly believe that the First Amendment to the U.S. Constitution guarantees "freedom of speech" at work. The First Amendment applies only to government action and does not limit the rights of private employers to regulate employees' communications nor provide any constitutional right for workers to express thoughts or opinions at work. As a result, with few exceptions (discussed below), there is no general right of "free speech" in a private employer workplace. In other words, although employees may be entitled to express their views freely on their own time or on a soapbox in the park, they typically have no such rights at work. In fact, private employers in most states generally may refuse to hire, adjust pay/benefits and discharge "at will" employees because of their political views.² In short, in most states "political discrimination" often is legal discrimination.

Many employers have policies that limit the discussion of political issues at work because of operational and legal risks. For example, although there is no general federal law prohibiting employment discrimination on the basis of political affiliation or actions, seemingly neutral conversations about "politics" can lead to claims of employer discrimination, harassment or retaliation that may violate federal or state discrimination laws. The potential for heated disagreements – and inflammatory, impulsive, ill-advised comments – is obvious. Unfortunately, such comments sometimes result in claims of discrimination or retaliation, in which an employee alleges that a supervisor or co-worker is biased against a protected characteristic (gender, race, religion, etc.), and highlights comments made by that individual about certain issues that many may equate to the specific protected characteristic, or allege that a simple disagreement with a supervisor's views led to improper discipline. Further, recent public attention on "bullying" may prompt claims of "bullying" harassment by employees (not always supervisors) forcefully advocating their political opinions to unreceptive co-workers. It is understandable, therefore, why many employers simply elect to minimize such controversies by prohibiting any "politics" at work where legally permissible.

Two Exceptions to "No Politics at Work"

There are two general exceptions to the principle that private employers may legally implement a "no free speech or political activity in the workplace" policy.³

First, the National Labor Relations Act (NLRA) restricts an employer's right to limit workers' communications about wages, hours and the terms or conditions of employment during non-work time in non-work areas. Importantly, many of the NLRA's provisions are applicable to non-union employers and even protect workers who do not belong to a union. For example, the National Labor Relations Board (Board), the federal agency that enforces the NLRA, has recognized for many years that worker communications about such matters as pay, benefits and workplace safety are a "protected concerted activity." Absent a no-strike obligation in a collective bargaining agreement during the term of the agreement or in the absence of a collective bargaining agreement altogether in a non-union setting, employees may even strike over matters relating to their wages, hours or other terms and conditions of their employment. Communications or activities by employees "in support of employees of employers other than their own," or that seek to "improve their lot as employees through channels outside the immediate employee-employer relationship," can also be protected. Therefore, employees' statements and actions concerning political issues and events outside the workplace can be protected if they have a direct nexus to the workplace or to employees' terms and conditions of employment.

While there is not always a "bright line" between "protected" and "unprotected" communications, the NLRA protections are confined to topics with a nexus to the workplace and employees' terms and conditions of employment. Therefore, employers may restrict workplace communications that are purely "political" in nature as long as any such rules are uniformly enforced. For example, an employer legally could forbid communications generally touting a political party or candidate; displaying or distributing a poster or campaign button ("Vote for Smith"); and wearing a T-shirt that seeks support for a law to increase the speed limit. Although those communications and activities clearly are political in nature, they lack the connection to employment-related issues required to bring them within the scope of the NLRA's protections.

The line between unprotected "purely political" communications and NLRA-protected communications becomes blurred when the subject matter touches on wages, hours or other terms or conditions of employment. For example, displaying posters or distributing leaflets saying "Vote for Smith – She'll Raise the Minimum Wage," or wearing a T-shirt asking co-workers to "Support Workers' Rights" likely are protected by the NLRA. Employers who restrict those types of communications risk exposure to a Board unfair labor practice charge. Not surprisingly, the Board also has extended the NLRA's protections to "mixed communications" that contain both protected and unprotected political content. As a result, employers have an even greater challenge when deciding which communications are or are not protected under the NLRA. Drawing lines between protected concerted activity and unprotected political activity often is difficult.

Second, laws in some states provide protections for their residents. For example, several states have "free speech," "political activity" or "off-duty conduct" laws that give employees rights not provided by federal law or the laws of other states. A sample of state laws is set forth later in this alert. As discussed below, they vary widely in scope and content. As a result, employers – particularly multistate employers – must carefully craft their own policies.

Misconception 2: Employees Must Be Allowed to Display and Distribute Political Materials and to "Campaign" in the Workplace

Wrong again. Employers have the right to ban in their workplaces any non-work-related activities and, as noted above, there is no general federal protection for employees' political activities. However, complying with the NLRA and the discrimination laws sometimes is tricky in the context of distributions/solicitations/displays because, again, political activities with a sufficient connection to employment-related issues may be protected by the NLRA so restrictions on such activities must comply with rules developed by the Board. For example:

• An employer cannot lawfully prohibit workplace conversations about protected political subjects, even during work time, unless it similarly prohibits all other non-work-related communications during work time.
• If the protected political activity involves actual solicitation of money or other support for a candidate or cause, then it may be prohibited on work time. But it may not be prohibited at all times on the employer's premises (i.e., employees' lunch break solicitations in the company cafeteria likely are protected).
• If the protected political activity involves distribution of literature, then it may be prohibited on work time and in work areas. But it may not be prohibited on non-work time in non-work areas (again, distributions by and to lunch-breaking employees in the cafeteria are protected).
• Even if the employer provides employees with use of its computer and email systems to perform their duties, it may prohibit the employees from using those systems to engage in protected and unprotected political activity at any time as long as the restrictions on protected political activity are consistently applied to all or similar types of prohibitions and not just to protected concerted activity. Similarly, employers may impose uniformly applied bans on employees' non-work-related use of other company equipment (such as bulletin boards, copiers, printers, televisions, public address systems and office supplies) to engage in political activities, including those protected by the NLRA.
• In the absence of significant and demonstrable "special circumstances" (such as unique concerns about safety, patient care, damage to machinery or equipment, or customer service issues), an employer cannot prohibit employees from wearing buttons, T-shirts or other clothing displaying protected political messages (e.g., "A Vote for Smith is a Vote for Higher Pay!").

As a result of the Board's rules, employers – union and non-union employers – lose much of their control over employees' political communications and activities, inside and outside the workplace, if there is a sufficient relationship to employment-related issues. But there are measures that employers can implement to minimize "politics in the workplace."

What Can an Employer Do?

There are several "next steps" for employers that are concerned about potentially work-disrupting, productivity-draining and fury-inducing "politics in the workplace."

First, employers can prepare and implement a policy that includes appropriate carve-outs for expressions protected by the NLRA or applicable state laws. It may be impractical (and dangerous, in light of the NLRA) to impose an absolute ban on political expression, so a typical policy will: 1) limit employees' political communications (including distribution of campaign materials and solicitations of money or support) during work times in work areas; 2) state that oral communications about political issues related to wages, hours and work conditions are permitted when all employees involved are on non-work time; and 3) allow distribution of materials about political issues related to wages, hours and work conditions in non-work areas during non-work times unless such communications disrupt operations or are inappropriate in tone or content (violent or profane). Employers also may wish to discourage supervisors (either formally or informally) from engaging in political discussions with subordinates in order to minimize potential claims of discrimination, harassment or bullying. Of course, an employer's specific policy must be tailored to fit any applicable state law.

If the employer's policy permits some workplace discussions of candidates or issues, the employer should periodically remind employees – perhaps by redistribution of existing "communications" and "social media" policies – that the company 1) insists on respectful treatment of all personnel, 2) does not tolerate discrimination, harassment or retaliation, 3) limits employees' access to and use of social media (again, being cautious about limitations on discussions of wages, benefits or work conditions), and 4) will investigate employee complaints of mistreatment. Such reminders will make plain that political discussions also must comply with existing policies.

Enforcement of any policy should be consistent among all employees regardless of political affiliation or opinion and consistent as to subject matter. That is, enforcing "no solicitation" as to both political campaign materials and any union or union-organizing materials; allowing political but not union solicitations/distributions in the workplace will draw a Board unfair labor practice charge. If a violation is suspected or a complaint is made, a careful investigation should be conducted and discipline issued as appropriate. It is important that any policy violation be based on the fact of, or manner of, the political communication and not its message: employees should be punished for their behavior and not their ideas because content-based discipline is more likely to lead to claims of discrimination.

Conclusion

Employers have options available to them for maximizing productivity, attention to customer service and worker focus during an election cycle. A carefully crafted and uniformly enforced policy often will lower the risk of employee claims while increasing worker productivity.

Selected State Laws Addressing Workplace "Political Activity"

Many states have laws that address general "voter coercion" and require employers to provide time off work to vote, but fewer states have statutes that address the discussion of politics in a private workplace. Some of those states are shown below.

Florida

There are no state laws that address politics in the private workplace, but an employer may not discharge (or threaten to discharge) an employee for voting or not voting for a particular candidate or issue. For further information, contact Bill deMeza.

Georgia

No state laws address politics in the private workplace. For further information, contact Josh Bosin.

Illinois

An employer is not permitted to maintain a record of employees' off-the-job political activities. For further information, contact Phillip Schreiber.

Maryland

During the 90 days prior to an election, employers are forbidden from exhibiting in the workplace any threat intended to influence the political opinions or actions of employees. For further information, contact Kara Ariail.

Massachusetts

Employers are prohibited from attempting to influence an employee to give or withhold a vote or a political contribution. Employers are also prohibited from taking an adverse employment action against an employee – or rewarding an employee through higher wages or favorable employment terms – because of the giving or withholding of a vote or a political contribution. For further information, David Santeusanio.

New York

The state's "off-duty conduct" statute prohibits employer discrimination based on an employee's "political" or "recreational" activities, including running for public office, campaigning for candidates or participating in political fundraising activities. For further information, contact Loren Forrest.

Pennsylvania

Pennsylvania courts recognize an exception to "at will" employment where discharge violates a clear mandate of public policy. Some Pennsylvania courts have held that freedom of political expression – even for an employee of a private company – is an important public policy and engage in a fact-specific inquiry to determine whether a termination based on the expression of a political opinion would violate public policy. For further information, contact Sara Begley or Dana Feinstein.

Texas

Employers may not retaliate against employees for voting a certain way by reducing or threatening to reduce their compensation or benefits. For further information, contact Mary Nix.

Virginia

There are no laws addressing politics in the workplace. For further information, contact Kara Ariail.

Notes

¹ This Holland & Knight alert is similar to one issued in 2016, updated to reflect changes in the applicable laws. (See Holland & Knight's previous alert, "Politics in the Workplace: What Must Employers Allow?," July 19, 2016.)

² An "at will" employee is one who does not have an express or implied contract of employment, that is, someone who can resign or be discharged at any time for any or no reason with or without prior notice. The vast majority of U.S. workers are employed "at will."

³ Public employees have special protections under federal and state laws. The precise nature and extent of their rights depends on their employer (federal, state or local government) and in the state in which they reside, so this alert does not attempt to discuss those numerous and various protections.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.