Although statewide and local elections occur on a regular basis, I only seem to receive the following client question around this time of year every four years when we are voting for a President: “What can we do to prevent employees from arguing about politics?” Or a variation that may or may not be unique to the San Francisco Bay Area: “We don’t want employees to be offended by someone’s views that aren’t progressive enough for our workforce.”
Some employees believe that they have rights of freedom of expression under the First Amendment to the Constitution when they are at work. As I like to point out in harassment prevention training, employers must have rules of conduct because of their overarching obligation to provide a work environment free from harassment and discrimination. Employers are also responsible for protecting the safety and security of their employees by prohibiting threatening or intimidating conduct (whether verbal or otherwise).
So, does this mean the employer should simply ban any mention of politics by saying: “No discussions of political candidates, the debates, or who wrote what on Twitter”? The short answer is no. Consider the following:
Has the employer or its CEO or owner formally endorsed a particular candidate?
If so, it can seem contradictory to tell employees they are not allowed to talk about the election. It should go without saying that employers would not tell their employees how they ought to vote.
Is the employer prohibiting employees from talking about subjects that are protected by the National Labor Relations Act?
The National Labor Relations Act broadly disallows employers from prohibiting employees from discussing their work or employment conditions – or any other areas in which employees have rights to collectively bargain. Employees might interpret a prohibition on talking politics to mean, “I’m not allowed to say that I support a higher minimum wage or better health insurance.”
Does the employer want to go so far as to prohibit employees from wearing shirts or buttons or displaying items in support of a particular candidate?
Employers can prohibit political campaign displays in the workplace (because, again, employees do not have complete First Amendment rights in the workplace). However, such a policy must be administered in a completely consistent manner. If your CEO or most valued engineer are wearing buttons, they must remove them or everyone gets to engage in political displays.
With these considerations in mind, employers may wish to communicate something to their employees during this charged political season. Whether and how they do so should be closely related to the culture of the workplace.
An employer whose workplace includes a myriad of elaborate cubicle and office displays of individuality would likely want to take a “wait and see” approach to gauge whether employees are having disputes or emotions are flaring. In contrast, a workplace that needs to have formality, is open to the public or has already experienced employees at fisticuffs will want to take a proactive approach. An option in this regard would be sending out a communication to employees reminding them that non-work displays, including political buttons, are not authorized.
The bottom line is to be consistent and refrain from absolute prohibitions that go too far.
Employers should also dust off their voting time off obligations and ensure employee awareness. State laws differ in this regard so it’s important to make sure your policies are up to date.