• Top Ten Questions on Political Dialogue in the Workplace
  • November 2, 2016 | Author: John A. Snyder
  • Law Firm: Jackson Lewis P.C. - New York Office
  • During a presidential election season, political discussion and debate are prominent, often at family functions, social gatherings, and even at work. This year, in the final week leading up to the election, the divisiveness and sharp tone of political discourse seems more acute than ever and heightened awareness of its impact on the workplace is needed. According to CareerBuilder’s latest survey on politics at work, 3 in 10 managers (30 percent) and nearly 1 in 5 employees (17 percent) have argued with a co-worker this election season. More than 5,000 managers and workers in the private sector participated in the survey. At the same time, only about 3.1 percent of responding organizations have official or unofficial guidelines on talking about politics at work, according to Chicago-based outplacement and executive coaching firm Challenger, Gray & Christmas based on the results of its survey of 150 human resources executives conducted in March.

    Beyond the employee morale and productivity issues that may be affected, political dialogue in the workplace also may create potential liability for employers. Conversations over candidates often focus on race, sex, or religion and can easily provide potential grounds for harassment, race, religious, age and/or gender, among other forms of discrimination, retaliation, or other types of workplace complaints. Regulating and restricting political displays and expression at work does not mean an employer must purge the workplace of politics. Each employer must decide the extent of tolerable political expression or activity in the workplace based on an understanding of its culture, workforce, business needs, and client and marketplace sensitivities.

    Here is our Top Ten list to consider in determining whether your company is ready for the upcoming presidential election:

    1. Do the First Amendment’s freedom of speech protections allow employees to express their political views in the workplace?

    Employers have wide discretion when it comes to limiting the political expression of employees in the workplace. The First Amendment generally applies only to government censorship of speech. Thus, the Constitution allows private companies to regulate speech, even to bar political discussion entirely. While public employees are more protected by free-speech rules, even governmental entities can impose speech limits to ensure efficient operations. Some states, however, provide explicit protection for employee political expression. With that said, however, regardless of a particular state’s rules on political expression in the workplace, a private employer in general can discipline or discharge an employee for legitimate, business-related reasons, even if the conduct involves political expression at work. For example, if an employee’s political expression interferes with his or her work, disrupts his or her co-workers, or infringes upon business objectives, the employer can take action consistent with its written policies and practices. On the other hand, employers can run afoul of discrimination laws (including laws protecting political expression, religious beliefs, race, gender, religion, and other protected characteristics) when there is evidence of disparate treatment, uneven application of the employer’s policies, or adverse or retaliatory treatment based solely upon an employee’s political expression.

    2. Can an employer require its employees to support the employer’s political views?

    Federal election laws allow corporations to persuade a “restricted class” of individuals to vote for or against a political candidate. The “restricted class” is defined as “executive or administrative personnel” who are employed by a corporation on a salary basis and have policymaking, managerial, professional, or supervisory responsibilities. Executive and administrative personnel include a corporation’s officers, executives, managers, and lawyers. However, outside the restricted class, a corporation’s ability to communicate with rank-and-file employees regarding the election of political candidates is more restricted than under federal election laws.

    Further, state laws may prohibit all employers, including corporations, from requiring employees to support their political positions. New Jersey, for example, prohibits an employer from requiring employees to attend an employer-sponsored meeting or participate in any communication with the employer in order to communicate the employer’s opinion about religious or political matters. Similarly, the state of Washington prohibits retaliation against employees for failing to support a candidate, ballot position or political party. In addition, some courts have recognized an employee’s common law right to be free from employer-sponsored political expression. Given these statutory and common law protections, managers and supervisors should not share, and certainly not impose, their political views and opinions with their subordinates.

    3. Can an employer prohibit political campaigning at work?

    An employee’s focus at work should be job-related. Accordingly, an employer should regulate political campaigning at work through the enforcement of a non-solicitation policy, which prohibits employees from soliciting other employees for political purposes during working time. Employers should also immediately and consistently counsel and discipline employees who engage in political activities, instead of performing their job duties, during working time. In other words, employers should treat political campaigning at work as it would other forms of solicitation under its non-solicitation policies, whether it is for school fundraisers, charitable causes, or other civic endeavors unrelated to work.

    In the Internet Age, political campaigning at work may not be as readily detectable by employers as in years past. Often, political tickets and posts go viral and can span the globe in term of their reach. With nearly every employee having a smartphone and the proliferation of political blogs, Facebook, Twitter, Instagram, and other social networks, it is easier than ever for employees to find like-minded political supporters and focus on politics rather than their jobs during working time. Consequently, employers must implement and consistently distribute and enforce their electronic communications policies, emphasizing that their computer systems and devices are to be used for business-related reasons and that employees’ computer activity will be closely monitored. Employers might want to consider denying access to certain internet sites at work, including social networking sites to further restrict political activities there, much like they would restrict access to limit other-work use of the internet to conserve bandwidth, avoid viruses, and the like. As appropriate, employers should communicate in advance that this is a touchy subject and encourage courtesy and discretion.

    4. Can employers prohibit political displays at work (e.g., buttons, signs, or posters)?

    An employer can implement dress code policies that prohibit employees from displaying political items at work, such as buttons, pins, hats, and other campaign paraphernalia, so long as the employer evenhandedly prohibits the display of all forms of non-business-related items. An employer may want to prohibit employees from wearing paraphernalia (buttons, hats, and the like) at work in order to avoid the appearance that the employer adopts an employee’s political views. Typically, employers can prohibit campaign signs and solicitations and can take control of the information posted within their workplace by enforcing their non-solicitation rules. While an organization may prohibit employees from posting political signs and asking for campaign donations even without a non-solicitation policy, non-solicitation rules often can prevent these types of issues in the first place.

    Under the National Labor Relations Act (“NLRA”), non-managerial employees have the right to display labor union insignia at work. Therefore, an employee cannot be disciplined for wearing a union button that contains a political message. To the extent that buttons or insignias contain union messages or messages related to terms and conditions of employment, such as “fight for 15,” generally, non-managerial employees would be protected under the NLRA even though the messages also are political.

    5. Can employers restrict employees’ off-duty political activities?

    Individual states provide varied levels of protection for employees’ political expression and for other off-duty conduct. For example, Washington State makes it illegal to take adverse action against an employee on the basis of his or her voting preferences. Florida makes it illegal to fire or threaten to fire an employee for voting or not voting in any election, including in any state or local election. The election code in Texas makes it a felony to reduce wages or another benefit of employment, or to threaten to do that, in retaliation for a voter voting for or against a candidate or measure, or a voter refusing to reveal how he or she voted. California, Colorado, and Louisiana prohibit covered employers from preventing any employee from engaging or participating in politics, including running for elected office.

    Employers, therefore, need to be careful about not discriminating against employees for engaging in political activity. For instance, companies should not take adverse action against an employee for engaging in lawful off-duty conduct, such as supporting a specific candidate or being involved with a particular political party or organization. Likewise, discriminating against employees for holding political views or participating in off-duty activities on the campaign trail for candidates is often prohibited. For example, employees generally can put bumper stickers on their cars in support of a presidential candidate or volunteer to pamphleteer or otherwise volunteer when off-duty for a political candidate. Any action taken against employees typically should be based on inappropriate conduct related to the political activity, as opposed to the underlying political activity itself.

    6. An employee mentions to his supervisor that the employee’s co-worker constantly tells him that a candidate should not become president because of his religion. Another co-worker tells colleagues at lunch that another candidate is too old to be president. What can the employer do?

    As a threshold matter, the employer should follow established procedures for employee complaints. An employer must do what it can to ensure that political dialogue among employees does not turn into a discussion about protected characteristics. If they observe employees criticize a political candidate based upon their own protected characteristics, workers in protected categories may feel alienated or isolated. For instance, discussions about how a candidate’s age might affect his or her ability to operate as President could be perceived as age-based discrimination. Similarly, media attention concerning Donald Trump and Hillary Clinton’s statements about border security, the U.S.-Mexico border, deportation, and immigration could lead to comments about race, ethnicity, and national origin that might make someone uncomfortable. These and other current political issues all too easily can generate inappropriate workplace conversations.

    For all these reasons, employers should reiterate as necessary their anti-discrimination and anti-harassment policies, which include detailed complaint and non-retaliation procedures. Persistent, unwelcome political dialogue and discussion might be viewed by some employees as unlawful harassment or discrimination. If an employee complains of inappropriate behavior or unfair treatment based upon a discussion about politics or an individual’s political views, the employer should immediately investigate the complaint and take necessary action to remedy the potentially offensive behavior as swiftly, thoroughly and seriously as any other discrimination or retaliation complaint it receives. Calling a discussion, debate, or exchange among employees “political” does not obviate an employer’s need to investigate or take appropriate corrective action, especially where a complaint has been lodged.

    7. A devout Christian employee displays a Bible on her desk and strongly urges co-workers to vote for pro-life candidates. Can the employer take disciplinary action against the employee for displaying the Bible and/or for discussing her politics?

    An employer must distinguish between the religious and political aspects of the employee’s expression and conduct. Discrimination on the basis of religion is prohibited under Title VII of the 1964 Civil Rights Act and analogous state laws. Under Title VII and other laws, absent an undue hardship, an employer has an obligation to reasonably accommodate an employee’s religious practice, including the display of religious objects and artifacts. The Equal Employment Opportunity Commission (“EEOC”) has issued written guidance concerning religious discrimination in the workplace. In the guidance, the EEOC stated that an employee displaying a religious object (e.g., a poster with the message “Jesus Saves!”) in his/her private office does not pose an undue hardship. On the other hand, if the employee sat in the main lobby through which all employees, visitors, clients and vendors must enter and displayed the religious object, it would likely constitute a hardship because it could be perceived as representing the employer’s beliefs and viewpoints.

    Therefore, under existing EEOC guidance, an employee likely has a right to display the Bible on her desk in her office. By contrast, the employer can restrict the employee’s advocacy of pro-life candidates at work if it offends co-workers. The EEOC’s guidance and applicable case law makes it clear that religious expression directed toward employees by co-workers and managers may constitute harassment, if it is abusive or persists after the employees to whom it is directed have made clear that it is unwanted. For instance, an employer can prohibit an employee from repeatedly urging co-workers to vote for pro-life candidates if the other employees take exception to the employee’s persistent and unwelcome attempts to foist his or her religious beliefs on them. Employers should consider discussing religious and political expression and the need for sensitivity towards others in any discussions with managers and employees about workplace conduct and respect during the lead-up to the election.

    8. What are the general rules regarding use of corporate resources and soliciting contributions in the workplace?

    Corporate resources usually cannot be used to underwrite fundraising for a federal candidate. Expenses, such as a corporate conference room, supplies, or catering used during a fundraiser, must be underwritten by the campaign. Resources made available to the candidate must be charged to and paid for by the campaign at fair market value. Absent a company non-solicitation policy that prohibits such solicitation, the law generally allows individuals to solicit contributions from their work colleagues if the contributions are voluntary and made without threat of reprisal or retaliation. While supervisors may be able to solicit contributions depending on workplace policies, such requests should be completely discretionary and not appear to be coercive. Finally, if employees donate money to a campaign, it has to be their own money and not company money. “Straw person” arrangements with employees being reimbursed by the company for contributions must be avoided. Failing to do so can result in trouble with the Federal Election Commission and potential criminal charges against the company, not to mention that there may be additional state protections, depending on the jurisdiction involved.

    9. Does an employer have to provide employees time off to vote?

    The majority of states protect an employee’s right to take time off from work to vote. For instance, states including Arizona, Colorado, Hawaii, Maryland, and New York provide for paid leave for employees to vote in an election in certain circumstances where the employee may not have sufficient consecutive non-working hours to enable the employee to have time to vote. It is a criminal violation for employers to refuse to allow an employee in Texas to be absent from work to attend the polls to vote on Election Day, unless the polls are open for at least two consecutive hours outside the voter’s working hours. Accordingly, employers must be aware of and abide by these state-specific voting laws. (See our article, Election Day is Coming - What are Your Obligations as an Employer?)

    10. What are some recommended steps employers can take regarding politics and political discussion in the workplace?
    • Monitor the workplace during the final weeks leading up to the presidential election and be responsive to questions, complaints, or concerns that may arise from employees. Additionally, remind managers to report employee complaints, even if the complained-of conduct has political overtones. Remind managers of the company’s non-retaliation policy.
    • Reiterate a non-solicitation policy that prohibits all forms of solicitation - including political campaigning - during working time. Remind managers to evenhandedly enforce dress code, non-solicitation and electronic communications policies. Enforcement cannot be influenced by an employee’s political views or activities.
    • Reiterate an electronic communications policy that explicitly mentions that the employer’s computer system, including its internet, instant messaging and text messaging, is primarily for business-related use. Actively and consistently enforce a comprehensive anti-harassment and anti-discrimination policy that provides a clear mechanism for complaints and investigation. Remind employees of the company’s non-retaliation policy associated with lodging legitimate complaints.
    • Remind managers and supervisors to avoid political conversations or discussions with their subordinates. Employers also may want to include a specific section in their company policies addressing political discussion in the workplace. To the extent that employers limit political expression, limit only the types of expression that might harm productivity in the workplace, affect customer, client, vendor, or similar relationships or otherwise disrupt work.
    • Advise employees that all workplace speech, whether political or otherwise, should be respectful and tolerant of others’ views.
    • Do not press employees to vote for a particular candidate and never use threats of adverse employment action to influence an employee’s vote.
    • Review state laws regarding employee political expression and voting leaves.
    • Seek legal counsel before disciplining any employee for his or her political activities, including missing work to attend a political rally or to vote.
    • Communicate with managers and supervisors regularly during campaign and election season to ensure that they understand the importance of creating a respectful, politically-neutral work environment.
    • Brace yourself as an employer to address issues relating to the “First Amendment” and claims of “infringement on my Constitutional rights.”
    • Be sensitive to potential discrimination, harassment and retaliation issues. While political beliefs at work are not protected in the same manner as, say, religious beliefs, the potential exposure to these types of claims remains prominent.