Political beliefs are personal. Chances are slim that anyone can change our minds about our political views. Yet some people debate and argue about politics with their family, friends and coworkers. Because people spend so much of their time at work it makes sense that conversations about beliefs, sports, religion or politics arise. Political discussions frequently happen during the election cycle, but for the past few years these discussions haven’t slowed down.
During the recent Workplace Strategies conference, Ogletree Deakins provided participants a checklist for employers to evaluate political expression. There are two sides of the coin; the employees’ and the employer’s political expressions.
Step one: Know what laws apply to your workplace. Know the laws before you as the employer take
any action against an employee expressing political beliefs.
The first amendment along with other legal protections applies if you are a public sector employer. That means public employers can’t reprimand an employee for expressing political views at work. There are state laws that protect employees from discrimination based on political beliefs, affiliation or activity and state laws that protect employees from lawful conduct outside of work.
Step two: Know if the political expression is related to the terms and conditions of employment. The National Labor Relations Act (NLRA) protects expression and activities including work stoppage when the activity is related to matters within the company’s control. Employees marching in a “Fight for $15” rally outside of work hours, or leaving work to march or having literature at work may all be protected concerted activities. Call your employment attorney before taking action.
Step three: Consistently apply your policies and practices. If
the employer allows employees to talk about non-work related topics while
working, the employer cannot select what topics are permitted other than topics
that violate policies such as anti-discrimination. Conversely, employees can be
disciplined if the employer consistently bars non-work related discussions
because it negatively impacts performance.
Other policies that may be impacted are non-solicitation,
anti-discrimination and anti- harassment, social media and use of company
The flip-side is when an employer engages in political
expression. The same or similar steps apply.
Step one: Know what laws apply. State laws regarding voter
leave rights, laws prohibiting voter influencing, intimidation and/or coercion,
captive audience meetings and paycheck stuffers exist. FLSA (Fair Labor
Standards Act) and state or local wage and hour laws need to be considered if
the employer changes work schedules or closes locations to allow employees to
Step two: Understand why the employer is participating in
the political expression and whether it relates to a legitimate business objective.
The employer should consider unintended consequences as well as identified
business consequences as a result of the expression or activity.
An example of an unintended consequence was when an employer
passed out MAGA (Make America Great Again) caps to all employees breaching its
own non-solicitation policy and may have created an intimidating work
Step three: Consistently apply your policies and practices.
To be clear, private sector employees do not have the right to free speech at work. Political expression cannot defy protected classes at work. The example of a Confederate flag on a car in the employer’s parking may make some employees feel unwelcome or unsafe and lead to a hostile workplace allegation.
Employers should be aware of situations that can ignite a
conflict. Political beliefs run deep. Have a plan and be consistent. If your
company has no direct ties to a political party, stay neutral.
Genuine curiosity and respect are the foundations of a civil conversation. Rather than trying to change someone’s mind, listen to understand another view and identify shared beliefs. That is difficult, but not impossible in a healthy and respectful workplace.
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