As the 2024 election campaign reaches its peak, discussions about politics will likely find their way into the workplace. In addition to being a hallmark of democracy, such conversations can pose challenges for employers as they navigate rules around employees’ rights to participate in political discourse. Below are some common statements employers might hear from employees and tips for handling them, along with recent changes in employment law that could impact these conversations.
Recent Legal Context
Since the last election cycle, the National Labor Relations Board (NLRB) has adopted a more worker-focused approach. Under its current general counsel, Jennifer Abruzzo, the board has issued decisions that favor workers’ rights, including 2023’s Stericycle decision. This ruling requires that workplace policies be carefully crafted to avoid any perception of limiting employees’ rights under Section 7 of the National Labor Relations Act (NLRA). The NLRB now evaluates rules from the perspective of an “economically dependent” person, emphasizing the need for employers to draft policies that narrowly define employee conduct expectations.
Common Employee Phrases and Employer Responses
1. “But the First Amendment protects my speech!”
Private employers are not bound by the First Amendment’s free speech protections, which apply only to government restrictions. This means private companies can typically regulate employee speech on work time and using work resources. However, rules should be business-related and consistently enforced. Public sector and nonprofit employers may face different considerations, particularly if they receive federal funding.
2. “Are you saying I can’t talk about this issue?”
Political discussions often overlap with employment-related topics such as wages, benefits, and work conditions, which are protected under the NLRA. If these issues are central to a political candidate’s platform, employers should exercise caution in restricting these conversations. For discussions unrelated to protected working conditions, employers can limit them, but enforcement must be equal across all employees and political topics.
3. “You can’t fire me for my political opinion!”
Employers should tread carefully when considering disciplinary actions related to employees’ political activities. Some states, such as New York and California, protect employees from discrimination based on political activities. Additionally, if an employee’s political statement pertains to a protected characteristic, federal and state anti-discrimination laws may apply. Consistency in handling similar cases is critical.
4. “Why can they wear that political shirt?”
Employers who wish to restrict political attire in the workplace should ensure consistent enforcement across all employees. While a neutral dress code can cover political paraphernalia, exceptions may apply to union-related messages, which are typically protected. Policies must be uniformly applied to avoid any appearance of bias.
5. “I didn’t even use my work phone for that tweet!”
Employees frequently voice opinions outside of work. Employers should have clear social media policies addressing off-duty conduct that could impact the workplace. States like Colorado protect certain off-duty activities, so any restrictions must comply with state laws and be consistently applied.
6. “As a nonprofit, this candidate aligns with our mission!”
Nonprofits must be careful in navigating political campaign activities. While 501(c)(3) organizations cannot participate in campaigns, other tax-exempt organizations, like 501(c)(4)s, may engage in limited political activities if they follow legal requirements, such as reimbursing organizational resources used for campaign purposes. Nonprofits should have clear policies regarding employee political activity to avoid violating tax rules.
7. “Let’s use company resources to support this candidate!”
Federal law prohibits corporate contributions to federal candidates, including using company resources for campaign purposes unless compensated at fair market value. Employers should be aware that state laws also vary widely. Taking a public political stance may impact both consumer and employee perspectives, so consulting an attorney is recommended before making political endorsements.
8. “I need time off to vote!”
Although no federal law mandates time off for voting, many states require it, with some requiring employer-provided notices about voting rights. Employers with remote or out-of-state employees should review the specific voting time-off laws in relevant states to ensure compliance.
Steps for Employers
Update Policies: If your company doesn’t have a policy on political activity, develop one. If you do, ensure it’s up-to-date and aligns with state and federal laws. Consider consulting with ASE or your attorney to review the policy.
Clear Communication: Ensure employees understand policies on political activity and discussions.
Training: Managers and supervisors should be trained on implementing these policies fairly and effectively.
Prepare for Sensitive Issues: Emotions often run high around elections. Planning for potential political discussions in the workplace can help prevent conflicts and misunderstandings.
Balancing employees’ rights with workplace order is key during election season, and a proactive approach can help ensure compliance and a respectful environment. For specific legal advice, consulting with an attorney is recommended.
By Heather Nezich, courtesy of SBAM-approved partner, ASE. Source: CCH, Venable LLP
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