Katie Lonze, HR Consultant and Assistant General Counsel
Contributors: Mariko Paul and Christopher Sheekey
It is a common misconception that the First Amendment free speech rights apply in the workplace. They do not.
Employers have several options for crafting workplace speech policies regarding politics. While each of these options has its pros and cons, it is important to remember that no matter how employers elect to proceed, they should be consistent when enforcing these policies and aim to promote civility at every turn. Setting clear expectations for what is and is not appropriate in the workplace can reduce potential conflict and maintain a respectful workplace.
EMPLOYER APPROACHES
Permit Political Discussions in the Workplace
Employers may elect not to set any limitations on the discussion of politics at work to foster inclusivity and openness. This can promote a respectful and diverse work culture. Consider steps to maintain civility. Encourage respectful interactions and remind employees of company values. Address potential conflict by discouraging heated debates on company channels emphasize mutual respect and encourage employees to approach political topics from a place of curiosity and acceptance.
Limit Political Discussions in the Workplace
Employers may elect to limit political speech during official work meetings to avoid disruptions. For example, employers may consider implementing policies that allow political discussions but prohibit campaigning for specific candidates or policies in the workplace.
Similarly, employers may prohibit employees from wearing campaign buttons or clothing. Employers may also want to restrict the use of company email or resources for political purposes, or request that employees avoid political discussions in customer-facing areas.
Prohibit Political Discussions in the Workplace
Some employers may choose to ban political discussion entirely in the workplace. While this is generally permissible, employees may be left feeling disgruntled due to restricted opportunities to express their political beliefs or differing opinions.
Employers that choose this route should establish a clear and concise “no-politics” policy and distribute it to all employees. To avoid potential claims of discrimination, employers must be prepared to implement the policy fairly and consistently.
Be aware that limiting speech, especially among younger employees, can lead to feelings of disconnection and distrust toward leadership.
OTHER CONSIDERATIONS
Right to Discuss Labor-related Issues
Employers that enact policies prohibiting political discussion in the workplace should be mindful that federal and state laws protect an employees’ right to discuss labor-related issues.
The National Labor Relations Board (NLRB) protects discussions that involve labor-related issues such as salary, wages, or leave laws such as the federal Family Medical Leave Act. Thus, labor-related discussions in the context of politics or elections may be protected under the National Labor Relations Act. Accordingly, employers must permit discussions that fall under that category and should not discipline the employee for having those discussions in violation of the company’s “no-politics” policy.
Policy Consistency
As noted above, any policies related to political speech should be clear, neutral, and applied and enforced consistently. Keep in mind that political statements that include profanity, vulgar language, promote violence or discrimination may already violate existing company policies on professionalism or anti-discrimination.
Context and Location
Prior to taking disciplinary action, consider the type of speech, when and where it occurred, who engaged in the speech, and what was said or done. The “what” is most important.
- Is it NLRA protected speech, political speech or fall into another category? Is it discriminatory speech that violates the company’s anti-discrimination policy? Or is it hate speech which may carry criminal repercussions?
- Did the speech occur in a private social channel? In a meeting? At the park? Off duty conduct is a gray area and some states protect off-duty conduct. Employers in California, Connecticut, Colorado, and New York should confirm that they are compliant with additional protections for speech and off-duty conduct.
Election cycles and social issues can lead to heightened tensions and stress in the workplace. Employers should emphasize professionalism and respect and remind employees to support the company’s values and collective mission.