Contact: Koley Jessen (Nebraska, USA)
Workplace political discussions, especially during election years, can be distracting, divisive and damaging to employee productivity and morale. Employers need to be aware of the legal considerations associated with such discussions and attempts to control the same.
Political Speech / Activities
Some employees believe their political comments are fully protected by the United States Constitution (i.e., freedom of speech). Generally, however, employees do not enjoy protection for their political speech or activities under the Constitution, as the First Amendment’s prohibition on “abridging the freedom of speech” does not apply to private employers (just ask Curt Shilling, a former ESPN baseball analyst who was recently fired for controversial comments about transgender individuals despite his invocation of the right to “free speech”). Even public employers, such as federal, state or local governments or agencies, who are subject to the Constitution and its First Amendment protections, have the ability to place restrictions on speech in the workplace, if done for legitimate business purposes, such as maintaining an efficient and productive work environment.
At the same time, employers need to understand that they cannot prohibit all politically-based speech. In addition to limited speech protections offered under federal and common law, some state and local governments have enacted laws specifically prohibiting employers from taking adverse action against employees based on politically-motivated speech, action, or belief. For example, in Nebraska it is a Class IV felony for any person to coerce his or her employees to vote in any specific manner, or to take any other political action. Nebraska law also prohibits attempts to influence the political action of employees by threatening to discharge them because of their political action or by threatening to close down the place of business in the event of the passage or defeat of any issue on the ballot, in the event of the election or defeat of any candidate for public office, or in the event of the success or defeat of any political party at any election.
Discrimination / Harassment
An employer’s attempt to limit or restrict an employee’s political views or to impose its own political views can oftentimes cross over into other areas of employment law. As you know it is unlawful to discriminate against or harass an employee or job applicant based on his or her engaging in protected activity or being a member of a protected class. As a reminder, under federal law, the protected classes are race, color, religion, sex, national origin, veteran status, pregnancy, age, disability, and genetic information. In addition to the federal protected classes, Nebraska law prohibits discrimination on the basis of childbirth or related medical conditions, marital status, actual or suspected HIV infection or AIDS and, in Omaha, sexual orientation. Iowa law includes the federal protected classes plus gender identity, HIV positive status, pregnancy, sexual orientation, and genetic testing.
Although political speech is not expressly protected under the Equal Employment Opportunity Commission (“EEOC”) laws or the state and local counterparts, Employers should be cautious when making employment decisions based on an Employee’s political beliefs, statements or actions. Sometimes, it can be difficult to separate a person’s political beliefs from a person’s race, religion or other protected characteristic. It is even harder to separate unlawful biases of some from their political beliefs.
As noted in the January 2016 Newsflash, the EEOC recently released guidance on the treatment of employees who are or are perceived to be Muslim or of Middle Eastern origin. Political discussions that stray from campaign issues and into the territory of personal characteristics or classes protected by law can quickly get employers in trouble. Given statements by some of the candidates in the 2016 presidential race regarding terrorism, immigration, and religion, even an employee repeating something previously stated during a debate could end up giving rise to harassment or discrimination allegations by others.
Now would be a good time for employers to review and update their anti-discrimination and anti-harassment policies and procedures, and to train or retrain employees on such policies, as well as the complaint / grievance reporting and resolution processes.
In addition, if not currently in existence, employers may also consider policies prohibiting employees from wearing, displaying, or distributing political paraphernalia at work (e.g. nonsolicitation / nondistribution policies and dress code policies), provided such policies are applied in a broad, consistent and nondiscriminatory manner. Similarly, employers may implement policies that prohibit workers from using company technology (e.g. phone, computer, email account) for non-business purposes (i.e., engaging in political discourse or to solicit or advocate for political causes) during working time.
When considering such policies, however, it is important to remember that Section 7 of the National Labor Relations Act allows employees to engage in “concerted activities” for their “mutual aid or protection.” To the extent employees act together during nonworking time to advocate for or discuss a political issue that affects the terms, privileges, and conditions of employment, employers must allow such conduct or risk a Section 7 violation.
Voting Leave
Employers should also be aware that in many states employers need to ensure employees have sufficient time off to vote or to perform election duties. In Nebraska, the employer must allow employee’s entitled to vote in an election to have at least two consecutive hours to vote during the time period when the polls are open to vote. If the employee does not have two consecutive hours off during voting hours, the employee may request time off. Upon such a request, the employer may specify the hours during which the employee may be absent for voting purposes. Notably, employers cannot take any adverse action against an employee (including by deducting the time off from wages) because the employee takes voting leave.
In Iowa, employees entitled to vote in an election and who give their employer written notice prior to election day must be given at least three consecutive hours of time to vote. Employers may designate the period of leave to be taken, but employers must not penalize employees (including by deducting the time off from wages) for taking the voting leave.
Election Duty
Although less common than voting leave, employees may be called to serve as election workers. Nebraska law requires employers to provide a paid leave of absence to employees who are called to serve as election workers. Specifically, election workers cannot be subject to “discharge from employment, loss of pay, loss of overtime pay, loss of sick leave, loss of vacation time, the threat of any such action or any other form of penalty” as a result of the employee’s absence as long as the employee provides reasonable notice to the employer. Employers must provide employees with paid leave for the hours the employee is required to serve and, potentially, for eight additional hours prior to and following the time the employee is required to serve. Employers cannot take any adverse employment action against an employee because the employee serves as an election worker. Iowa does not have any such law related to election duty.
Please contact a member of Koley Jessen’s Employment, Labor and Benefits Practice Group to discuss these issues and the design and implementation of practical and lawful workplace policies.
