As Elections Get Closer, Workplace Political Discussions May Get Hotter

There are less than five weeks until our national and local elections. Are politics and political discussions causing disruptions in your workplace? What are an employer’s rights to address worker political discussions that may be getting out of hand?

First, in a privately owned company, the employer has the right to address and control employee behavior and speech that is causing unwanted disruption. This means the employer can prohibit certain speech and discourse between employees if it is causing disruption. However, there are legal concerns employers should be cognizant of when confronting a situation where speech is getting out of hand in the workplace. The First Amendment protections against regulation of speech does not extend into the private employer’s workplace.

So, what concerns must an employer be aware of when seeking to address worker speech?

Members that attended ASE’s Employment Law Briefing last week received an excellent law class from Terry Bonnette, Attorney at Nemeth Bonnette and Brouwer PC, on workplace conflict and managing employee disagreements that would include political discussions. Terry pointed out that depending on the circumstances involved with employee political discussion, employers do have to tread carefully. Some political speech, even in the workplace of a private employer, could be protected from the employer’s control.

Beware of the NLRA

One law that employers, particularly non-union employers, may not think would impact them is the National Labor Relations Act, (NLRA). If employees’ political speech involves issues of “protected concerted activity” then it may be protected from employer disciplinary response. What is protected concerted activity speech? Terry Bonnette pointed out, what if the speech is “Vote Democrat to protect and increase the minimum wage.” Discussions in the workplace about “wages, benefits, and terms and conditions of employment” are protected by the NLRA and disciplining an employee with this point behind the speech could result in the National Labor Relations Board (NLRB) finding that the employer engaged in an unfair labor practice – a breach of the NLRA.

Also Beware of Anti-discrimination Laws

“Federal anti-discrimination laws do not protect political speech, activities, or affiliation” points out Evan Citron at Jackson Lewis P.C. But if the speech involves a protected class (age, race, sex, national origin, disability, sexual orientation, or any other protected characteristic) the speech could be discriminatory harassment. Also keep in mind specific state protected characteristics such as Michigan’s height, weight, and marital status. This could also be speech whereby an employer’s adverse action against the employee or inaction involved could lead to a complaint of illegal discrimination.

Your State May Have a Law Against Off-Duty Conduct

As an example, if you have a workplace in California, Colorado, New York, or North Dakota, those states prohibit employers from taking most any adverse employment action against employees engaged in off-duty lawful conduct. This includes political conduct, activities, and speech. This situation generally involves conduct that is out of office and off-hour activities. In those states, actions or speech engaged in off hours, that the employer is concerned reflects poorly on them, may be protected and taking action in those circumstances could violate those particular state laws.

And Election Influencing? Really!!!

Interestingly, one other concern that Terry Bonnette brought up during his Employment Law Briefing presentation last week was that the State of Michigan and federal law generally “prohibits employers from discharging or threatening to discharge an employee in an attempt to influence an employee’s election decision.”  So, employers and their agents (supervisors and managers) that are hyper political and want to use employment as leverage to influence an employee’s vote may get themselves into election influencing trouble.

What Should an Employer Do (or Not Do)?

• Have clear policies regarding political expression in the workplace that do not run into applicable labor or employment law
• Apply policies consistently
• Train and educate employees and supervisors
• Make sure there are no off-duty conduct laws that may also apply in your state. Michigan does not have such a law.
• Encourage employees to behave in a way consistent with the company’s mission and values.

Good luck in the short time that remains between now and the election. Keep calm and think before jumping in one way or the other if workplace political discussions look like they are heating up.

Sources: Political Speech in the Workplace: How Employers Can Manage Legal Risks in 6 Steps. Evan Citron, Jackson Lewis P.C. CCH HR Answers Now. EXPERT GUIDANCE (9/27/2024); Handling Conflict in the Workplace presentation by Terry Bonnette. Nemeth Bonnette Brouwer PC (9/26/2024)

By Michael Burns, courtesy of SBAM-approved partner, ASE.

Click here for more News & Resources.