As another presidential election quickly approaches, the intensity of political discourse will inevitably increase in the workplace, posing unique challenges for employers seeking to maintain a respectful and productive work environment. To help employers navigate this dynamic period, here are some important legal considerations and best practices to address political discussions in your organization.
Rights of Private Employees in the Workplace
While the US Constitution protects the right to free speech, including political speech, this protection generally applies to public employers. In the workplace, private employers enjoy more leeway to regulate employee speech and conduct. Some states, however, do offer additional protections for private employees. For instance, in California, employees cannot face discrimination based on their political affiliation or political activity. In Oregon, employers are prohibited from forcing workers to distribute political communications or attend politically focused meetings. If your company is doing business in a specific state, ensure your codes of conduct and workplace policies surrounding political speech align with all related laws.
Navigating the National Labor Relations Act (NLRA)
One notable federal law that may govern political speech in private workplaces is the National Labor Relations Act (NLRA). While commonly associated with union-based activities, the NLRA can protect a private employee’s rights to engage in “concerted activity.” This occurs when two or more employees hold discussions or take action for their mutual aid or protection in the workplace. Often times, this can involve topics and issues that are political in nature. An example may include if a group of employees is unhappy with their pay and discuss how a particular political candidate’s platform may include a push for higher wages or better benefits. Such discussions would likely be a concerted activity under the NLRA, thus prohibiting an employer from taking action against those participating. Another popular example may be if a private employer typically receives government funding. Any discussions or action taken by a group of employees to support a candidate who publicly supports government subsidization of the industry under which the employer falls are likely also given protection.
Social Media and its Reach
In the modern world, social media is an extension of an individual. Social media platforms are used daily to connect with friends, share news, and ultimately, share opinions. So when an employee leaves work, goes home, and posts political opinions online, is this speech protected? Not always. If a political opinion shared by an employee harasses or deeply offends a coworker or otherwise causes a rift in workplace harmony, an employer may be able to take action against the author of the post. For example, an antisemitic post on Facebook may deeply harm a Jewish coworker, or a post containing anti-homosexual sentiments may unnerve a coworker belonging to the LGBTQ community. Employers should establish a social media policy that encourages employees to feel confident they can share opinions through social media while also keeping them informed of lines they cannot cross, both at home and in the office.
Regulating Internal Communication
As a general rule of thumb, employees should exercise extreme caution when sending any companywide communications that are not work related. A common instance of this practice going awry is when an employee circulates a joke via email to the entire office. Sometimes, this joke may include material that is explicit, inappropriate, or insensitive toward some on the receiving end. In a political context, it is not all that uncommon to share jokes, memes, or caricatures involving political candidates and their positions. Such actions will at the very least leave some in the workforce uncomfortable, and often deeply upset someone should the content contain crude or inappropriate humor. To make matters worse, workplace harmony will further suffer if upper management is on the email chain but does not condemn the action, as this can be seen by those offended as acceptance or endorsement of the joke. To err on the safe side, company policy should discourage the internal circulation of political content not relevant to work.
Best Practices
In the wake of what promises to be another hotly contentious election cycle, employers should be proactive in preparing for any possible disruption brought on by political speech in the workplace. Employers should strive to create a policy around political discussion that is clear, encouraging healthy debate and maintaining a respectful atmosphere while also outlining behaviors that will not be tolerated. Supervisors and managers should be trained on how to spot action that crosses the line as well as how to deal with interoffice conflict in a fair and respectful manner. Creating and supporting proper channels for employees to flag possibly disruptive political speech will also make for more efficient handling of possible issues.
