With the 2024 presidential election swiftly approaching, employers will be faced with many questions about the role, if any, of politics, social media, and political protesting in the workplace and how to address these sensitive topics with their employees. While this is not an exhaustive list, here are some do’s and don’ts to guide employers during this time.
- DO: review and revise relevant workplace policies to ensure that appropriate workplace conduct (and in limited circumstances, off duty conduct) is clearly defined for employees.
- DON’T: play favorites or be inconsistent! Employers should not solely discipline those employees with whom they disagree on their personal politics. If an employer plans to discipline an employee for violation of a workplace policy, make sure to apply the discipline consistently across the board.
- DO: have a clear understanding of what conduct is inappropriate and should subject the employee to discipline. In a recent case against Starbucks, the DC Court of Appeals found that Starbucks violated federal labor laws when it disciplined an employee for handing out pro-union pins to customers while the employee was on their rest break. Since the National Labor Relations Act (NLRA) protects this type of activity, it would be unlawful to discipline employees for such protected concerted activity even though it occurred during work hours and at the worksite.
- DON’T: discipline or terminate an employee for engaging in lawful off-duty conduct Many states such as California, Colorado, New York, have laws prohibiting employers from taking action against an employee for engaging in political activity (i.e., peaceful protesting, campaigning on behalf of a candidate, etc.). Almost 30 states have laws regulating politics in the workplace, so be sure to check the local, state, and federal rules pertaining to your employees.
- DO: encourage employees to be civil and respectful when discussing sensitive topics like politics in the workplace – including when posting on social media. Remind employees that while political differences are sure to arise, discriminatory or unprofessional language or conduct will not be tolerated. Of course, any employees who lose their tempers or resort to screaming should be promptly and uniformly disciplined.
- DON’T: discipline employees for off-the-clock social media posts. An employee’s social media posts may be protected under the NLRA if they are discussing working conditions or other matters related to their employment.
- DO: a thorough investigation if an employee is arrested at a protest, or if the employer otherwise gets notice that an employee engaged in criminal activity while protesting. This includes speaking with witnesses and the accused employee if possible to get their side of the story and to give them an opportunity to explain or correct any of the circumstances that the employer is investigating.
- DON’T: ask for employees’ personal social media account passwords. At least 25 states have passed laws prohibiting an employer from requiring employees or applicants to provide their social media passwords.
- DO: use best judgment when considering whether to discipline or terminate an employee for political conduct during this election season.
Navigating political speech in the workplace has always been a delicate balancing act, and this contentious presidential election season is sure to bring its own set of challenges for employers. Companies should communicate their policies on professional conduct, social media, and other relevant policies clearly, and remind employees that the workplace should remain professional and free from heated political debate.