Video Script: Politics at Work
My name is Russell Lookadoo, President and Chief Strategist for HRchitecture. I am the HR guy for small business. My firm exists to leverage my expertise and experience in Human Resources so that a small business owner can achieve their dreams through the effective use of their team.
Employees come to work to perform a job, but they also bring their social, political and personal ideologies, which they often choose to express in conversations with co-workers, on their clothing or in other ways. Allowing employees to display any social or political messages at work will create tension and leave the company vulnerable to customer complaints or lawsuits.
Politics are reaching an emotional fever pitch in the United States. As the election is upon us, you need to plan now how to maintain a civil workplace.
Can you outright ban political discussions or apparel? In many cases, yes. But you might want to consider whether that’s worth trying to police. After all, these conversations are going to take place whether you ban them or embrace them.
When implementing an organizational approach or enforcing a policy already in place, you need to know how federal and state laws affect such discussions as well as your ability to intervene.
There is no federal statute that protects employees of private companies who want to express their political opinions at work. The right to free speech under the First Amendment of the U.S. Constitution only guards against government censorship. While public employers must be aware of their limitations, private companies have no such obligations under the 1st amendment. Therefore, when Joe or Jane Employee says they have the right to free speech at work, you can confidently tell them otherwise.
However, there is a federal law to consider when politically based chats turn into group discussions on the terms and conditions of employment, such as health care benefits and paid leave. The National Labor Relations Act (NLRA) of 1938 guarantees both union and nonunion employees the right to “protected concerted activity,” meaning they can discuss employment conditions among themselves freely, even passionately, and employers cannot quell such dialogues or take adverse actions against the employees. Employers also can not prohibit conversations about harassment, discrimination, workplace or safety violations. Certainly, they cannot appear to retaliate in these circumstances.
You can limit such discussions to the employees’ own time, know that their lunchroom conversations, after-work talks, and social media postings could be protected under the NLRA and various whistle blower or anti-retaliation regulations.
Regardless, employers can prohibit speech that is profane, defamatory or malicious against the company or its managers.
Only a few states provide safeguards for workers expressing political beliefs, and most of those protect only an employee’s right to pursue legal off-duty political activity.
Oregon offers some additional protection. The state’s 2009 Worker Freedom Act prohibits employers from forcing employees to attend political meetings and from distributing political communications.
California Labor Code section 1102 provides "no employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity." To this end, employers cannot enact policies limiting employees' political activities or affiliations or, force employees to follow the employer's political leanings.
On the contrary, political beliefs or views are not a specifically protected category under California's discrimination laws. Nothing in either of the labor code provisions above directly addresses discrimination or retaliation solely on the basis of expressed political views.
Employees who participate in political activities may still be subject to discipline if their conduct violates their employer's legitimate policies or interferes with work duties.
Employers can hold mandatory political meetings and distribute politically based communications to their employees. The U.S. Supreme Court in its 2010 decision in Citizens United, lifted restrictions on financial contributions that corporations and unions can make to support political advertising or issues as long as they don’t contribute directly to a candidate. The ruling gave birth to “Super PACs” (political action committees), through which companies can indirectly support candidates or issues.
The decision also removed limits on employer communications with rank-and-file employees regarding an organization’s political leanings. It means that employers are allowed to communicate their political beliefs directly to employees and to require them to attend meetings or other political activities. Previously, employers could only require managers to do so. So, if you as an employer want to hold mandatory political meetings with employees who then cry foul, you can cite the Supreme Court’s decision where state law allows it. It is crucial though that if you require meeting attendance you must pay hourly employees for their time in the meeting.
If you want to avoid monitoring political and social messaging leadership may want to adopt a blanket policy and enforce it neutrally. There is no legal right to wear political clothing or display political images in the workplace, and employers are well within their rights to ban any clothing or bodily displays of political speech. Employers can prohibit employees from posting nonwork-related messages on company bulletin boards or intranets. The key to success here is neutrality and consistency.
On a final note, this year’s harsh campaign rhetoric, in particular, could prompt negative comments regarding social justice, women, religion, and national origin, so consistently enforcing your existing anti-discrimination and anti-harassment policies—and perhaps conducting some timely retraining—will serve you well. Employers should ensure that disciplinary actions are consistent and applied objectively and uniformly to every employee.
It is important that leadership is in front of this issue and communicates policies clearly, consistently, and confidently. As the HR Guy, I am available and ready to work with you to navigate this situation for your business.
Schedule your first consultation with me for free. Start here.