Published in the NH Business Review (10/18/2016)
With the country in the midst of an unprecedented election cycle, politics are at the front of most people’s minds. Candidates at all levels are debating issues on a weekly basis, leaked or hacked information about candidates is being released seemingly every hour, and as a result, the political conversation is more robust than ever before.
Naturally, that conversation makes its way into the workplace, and if ignored or handled improperly, it can potentially harm worker morale and relations and lead to legal claims. It is therefore important for employers to understand how to properly manage political discussion at work.
Some people reading this may be asking, “Should we even do anything about this? Do we care if our employees are talking about what Trump or Hillary said at last night’s debate?“ The answer is likely “Yes.”
The American Psychological Association recently conducted a survey of nearly 1,000 workers and found that almost half of those surveyed said they were more likely to discuss politics in the workplace during this political season than in the past. Making matters worse, the conversations appear to be taking a toll, as one in four employees reported that they have been negatively affected by political talk at work during this election season.
Younger employees in particular reported feeling stressed-out by such discussions. Workers aged 18 to 34, and men especially, were more likely than older colleagues to experience negative job-related effects, including trouble getting tasks accomplished, feeling isolated from co-workers, and even experiencing increased hostility at the office. Given the tone of the discourse between our presidential candidates, these results are not surprising.
So what, if anything, can employers do to limit the possible negative effects of political discourse at the office? At first glance, one might think nothing, because such limitations would violate employees’ free speech rights. But in fact, private employees do not have First Amendment rights to free speech in private workplaces.
In private workplaces, there are no laws preventing employers from putting restrictions on their employees’ political speech during business hours, or even when employees are off-duty.
However, there is an important distinction for group discussions among employees about the terms and conditions of employment, such as health care benefits or union activity. These discussions are considered protected concerted activity under the National Labor Relations Act, and employers cannot quell such conversation or punish employees for having these types of discussions.
As with many workplace issues, the best protection for employers and employees is a clearly-written policy. Here are some examples of what employers can put in a policy relating to political discussion at work, and how best to implement these policies.
- Employers may include a blanket prohibition on solicitation for certain causes. If including such a restriction, however, it is important that the employer apply it to any type of cause, from fundraisers for scouting to calls for donations for a political candidate.
- Employers may prohibit employees from using office equipment like phones, copiers, computers, or work-issued smartphones, in support of political activity.
- Employers can, but may not want to, bar their employees from posting political buttons, stickers or posters in their offices. If restricting postings, employers must use caution to ensure that the ban does not include material with union logos or verbiage, as this is protected concerted speech under the National Labor Relations Act.
- Employers that are conscious of their public perception may also consider asking employees who drive on company business to remove political bumper stickers from their vehicles. To avoid potentially alienating customers, most businesses prefer to appear neutral regarding political matters, so an employer likely has a legitimate justification for prohibiting political advertisements on vehicles being used for business.
- The same reasoning applies to an employer’s social media presence. Social media outlets may be a company’s only means of communication with the public, so there is a legitimate business interest in prohibiting political commentary by employees on social media, and such a prohibition is usually acceptable. Employers may consider drawing distinctions between the type of social media accounts, as the justification may be stronger for a LinkedIn account versus an employee’s personal Facebook account. Again, however, discussion about unions or the terms and conditions of work, even on social media, is protected, and must be allowed.
As with any workplace policy, restrictions on political discourse should be worded in a neutral fashion and applied in a fair and neutral manner. If a company is inclined to allow discussion of politics at work, it should try to set boundaries on the subjects of discussion to avoid the conversation becoming about protected classes or personal characteristics.
Employers should also remind their employees that political discussions must be conducted in a respectful manner, so as to avoid potential claims of workplace bullying or hostile work environments.
Nicholas F. Casolaro, an associate in the Employment Law Practice Group at the law firm of McLane Middleton, can be reached at 603-628-1246 or nicholas.casolaro@mclane.com.