Confused About Your Employees’ Political Speech Rights at Work?

09.28.20Baylee Davies

Confused About Your Employees’ Political Speech Rights at Work?

Now is the time to learn about this hot button topic!

While this is a complex issue throughout the year, during this hyper-partisan election season, it is especially important to understand what employers can and cannot do when it comes to employee’s political sentiments, statements, paraphernalia or other politically-related activities and behavior. Many people mistakenly believe that the First Amendment guarantees freedom of speech at work. This is incorrect because the First Amendment applies only to government actions not to private employers. 

However, if it is not managed properly, political speech in the workplace can have damaging effects on the business and employee morale and engagement. It can also result in customer complaints if the political viewpoint is perceived as being endorsed by the company or causes the customer to be given poor service.

Employers will want to be sensitive to different opinions while ensuring the behavior does not interfere with work productivity or cause employees or customers to feel they are not being treated fairly. Employers also need to be aware of the ‘concerted activity’ rights of employees under the National Labor Relations Act (NLRA). The NLRA protects all employees who engage in speech or behavior concerning their terms and conditions of employment. When the speech is purely political without any connection to employment-related issues it is likely not protected under the NLRA but sometimes these lines can become blurred.

Private-sector employers are generally allowed to restrict the following in their workplace:

  • Verbal or Written Discussion of Political Views – This includes talking about candidates, political parties, political issues and soliciting support or donations. A seemingly neutral conversation about politics can lead to claims of discrimination or harassment if it leads to a discussion about a candidate’s race, gender, religion or other protected characteristic in the context of fitness for office. These neutral conversations also have the potential for turning into heated disagreements that are best avoided at work. An employer may take disciplinary action against an employee who is engaging in political speech if it is disruptive to the working environment, violates company policy, takes away from the employees’ or others job duties or causes them to treat customers or other employees differently because they do not agree with them.
  • Political Displays – An employer can prevent employees from wearing political shirts, hats, buttons or other pieces of clothing through a dress code. They can also decide to prohibit any kind of political signs, posters, calendars or other printed items that could be characterized as political in nature.

Employees may engage in lawful political activity outside of their working hours and their workplace without interference from their employer. An exception could be if an employee is caught violating the law, such as committing a violent act against another person, especially if they are tied back to being an employee of the company. This could be an issue where the employee’s behavior outside of work causes harm to the employer’s reputation and the employer may be able to take action against the employee.

Some common-sense ideas to manage political speech in the workplace:

  • Don’t overreact to short conversations between employees during working time, however, don’t allow significant disruptions to workplace productivity or allow conversations to get out of hand and lead to heated arguments. It is best to start with a simple reminder or coaching to enforce company policy. Stronger measures can be taken if the employee continues any disruptive behavior.
  • Political speech can involve many workplace policies, such as anti-discrimination and harassment, no-solicitation, access to the worksite, attendance policies, dress codes, social media, use of company computers and equipment and concerns about whistleblowing and retaliation. Several of these policies can be used to discipline or take other appropriate action in the case of an employee who is causing disruption in the workplace due to their political speech.
  • It is important that employers communicate clear expectations to their employees about their policies and how they pertain to political speech. Supervisors should be trained on the expectations and their role in enforcing the policies.
  • Employers may want to consider having a separate political speech policy that lays out the expectations on this and then communicating it to the employees and holding them accountable to it. 
  • Employers must be careful to be consistent with how they enforce their policies and ensure they do not treat employees differently because they agree or disagree with the employee’s political views. Most states also have laws that prohibit an employer from trying to persuade an employee to change their views or their vote on a candidate or political issue and prohibit retaliation if the employee does not conform to the employer’s viewpoint.

As with many other employee relations issues, the details of the situation along with any state or local laws will be important in determining the appropriate action that can or should be taken by the employer. It is important to keep in mind that an employee should be disciplined for their behavior and not their ideas or their political message.  This may help avoid claims of discrimination based on the person’s political views.

SDHR Consulting is here to help you navigate the complex and tricky area of political speech at work. We can assist with problem-solving for solutions around this issue as well as other employee relations issues that you face. In addition, we are experts on developing compliant and enforceable Employee Handbooks and company policies and procedures as well as training your supervisors on how to handle various employee situations.

About the Author

Traci Hagan, “Treasure Trove”

Traci is an HR Consultant who has been with SDHRC for over 4 years but has over 32 years of experience in employee relations, conflict resolution benefits administration, training and development, workers’ comp, and staffing. Traci’s experiences encompass multi-organizational and cross-cultural issues which allow her to expertly charter the waters of complex problems and where she thrives by discovering and providing solutions for smoother sailing.