Published in NEHRA News (8/15/2019)
During primary season in 2016 it seemed as though questions came up almost daily about how to curb the nasty "watercooler" rhetoric about political candidates and issues. The calendar has not even turned to 2020, and we are already preparing for political rallies and candidate visits. Nearly all of the 20 Democratic candidates have been to New Hampshire and those who last through the first couple of rounds of debates will soon descend upon Massachusetts. President Trump is set to visit New Hampshire again on August 15, and the signs are going up all over. In 2016, we said that the presidential election cycle was like no other. Well, it's now setting up to be like no other all over again. Now may be a good time to review the do's and don'ts of campaign conversation at work.
With more debates and town hall meetings than ever before, 24/7 news coverage, claims of the media being the "enemy of the people", there is no doubt that your employees are engaged in conversation about the candidates either in person or through social media. What can and should an employer do about regulating political discourse at work?
First, employees do not have so-called First Amendment rights to free speech in private workplaces. The cry of "it's a free country" and "you're not the boss of me!" doesn't quite ring true at work. Employers may indeed restrict employee speech and activity during business hours and sometimes even when employees are off duty.
What follows is some general advice about what you can and can't prohibit or require:
- Employers may prohibit employees from using office equipment in support of political activity. That includes phones, computers and copiers.
- It is also permissible to require employees to remove political buttons or take down posters. However, companies must be cautious that the material they are requesting be removed does not contain verbiage or logos related to unions as this speech is protected by the National Labor Relations Act. It is also wise to link such requests to a neutral policy or dress code which does not single out a particular type of speech or content.
- It may also be appropriate to ask an employee who drives on company business to remove a political bumper sticker from a personal vehicle. Most businesses prefer to appear neutral regarding political matters so as not to alienate prospective customers. An employer may very well have a legitimate business interest in prohibiting political advertisements on vehicles being used for business.
- Social media, as usual, presents unique challenges. If employers have a legitimate business interest in prohibiting political commentary by employees on social media, such a prohibition is usually acceptable. It would be easier for a business to justify telling an employee not to post political affiliations on Linked In, for example, which is often used for business. It is more difficult to do so on purely personal social media such as a private Facebook page. Again, any discussion about unions or conditions of work is protected, and must be allowed.
- Companies may either allow or prohibit discussion of politics at work. Care must be taken, however, to make sure these conversations do not become conversations about protected classes or characteristics. A debate about immigration policy, for example, could result in accusations about racisms or discrimination based on ethnicity. It wouldn't be hard to imagine conversations about the candidates including the mention of age, gender, or religion as well. Once that happens, a hostile work environment claim might follow.
A special word about non-profits: 501(c)(3) corporations must be very careful that political advocacy stays out of the workplace. The use of office equipment or advocacy by employees, for example, might compromise a non-profit's tax exempt status.
As with most issues involving any potential controversy, an employer's best defense is to have good policies: preferably policies which are neutral. A dress code which prohibits logoed shirts or a non-solicitation policy which limits all forms of solicitation is much safer than one which targets political speech and solicitation only. Likewise, the best way to enforce such policies is in a fair and evenhanded way. In other words, don't put "Make America Great" bumper stickers on all the company vehicles and tell those with the "Nevertheless She Persisted" bumper stickers to remove them from their personal vehicles. Things might get even "nastier" than they are already.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.