On September 10, 2024, pop-culture icon Taylor Swift announced her endorsement for the 2024 presidential election via Instagram and encouraged her followers to get out and vote. Swift's post is a great reminder of two topics that employers should be considering as election season continues to ramp up: (1) navigating employee political speech and (2) compliance with voting leave laws. Take this election season as an opportunity to audit your policies related to these topics.
Navigating Political Speech in the Workplace
Employee discussions surrounding sensitive political topics can create situations that are tricky for employers to appropriately navigate and often become more prevalent and intense during a presidential election year. Employee political speech can impact workplace morale and influence productivity. Fortunately, employers have significant flexibility in regulating political speech in the workplace as the First Amendment only guarantees citizens free speech without intrusion by the federal government but does not apply to private actors like companies.
Still, there are a few laws employers must be careful not to run afoul of when regulating employee political speech, including: 1) state off-duty conduct laws, 2) anti-discrimination laws and 3) the National Labor Relations Act (NLRA).
1. State Off-Duty Laws
With the prevalence of social media and "off-the-clock" work-related gatherings, it is common for employers to have policies that regulate employee conduct outside of the traditional work environment and even during non-work hours. For example, employers may maintain social media policies that regulate the type of information employees can share on social media. Companies must ensure these types of policies do not violate state off-duty conduct laws, as some states, such as New York and California, prohibit employers from discriminating, discipling, or discharging employees that participate in certain lawful off-duty conduct, including political activity and speech. Businesses operating in states with off-duty conduct laws should carefully consider the application of those laws when evaluating and/or enforcing its policies regarding employee political activity or speech.
2. Anti-discrimination Laws
While off-duty laws may prevent employers from taking certain actions based on employee political activity, employers must balance those protections with obligations under traditional anti-discrimination laws. Employers should not permit speech or activity, even if politically motived, if such discussion fosters a hostile work environment based on any class protected by state of federal anti-discrimination laws. Employee political speech can trigger anti-discrimination laws if it involves discussion of or relates to a protected class, such as race, national origin, religion, or sex. Not only can employee political discussions lay a foundation for allegations of discrimination or harassment but for allegations that an employer's response to the same is motivated by discrimination. Thus, employers must tread carefully when handling workplace disputes where political speech and anti-discrimination laws intersect.
3. National Labor Relations Act (NLRA)
Employers cannot forget that the NLRA prohibits employers from discriminating or disciplining employees who engage in protected concerted activity, which includes discussions involving the terms and conditions of their employment. The NLRA's protections apply to non-supervisory employees, whether union or non-union. If an employee's statements are arguably related to their working conditions, the NLRA may be triggered. Therefore, employers should avoid instituting any policy that prevents all political speech in the workplace. Instead, employers should address concerns regarding employee political discussions on a case-by-case basis.
Voting Leave Law Refresher
Federal law does not require employers to give employees time off to vote. While not every state has a voting law on the books, the majority of states do, and the requirements range by state but typically cover a few common topics. As we approach Election Day, employers should ask the following questions to ensure compliance with state voting law requirements:
- Which of the states that you operate in have voting leave laws?
- How much leave time is the business required to provide employees to vote?
- Is the business required to pay employees for time spent voting?
- Is the business allowed to require employees to provide advance notice of the need for voting leave?
- Is the business required to notify employees of their right to use voting leave?
Some state laws provide additional restrictions or carveouts, and it is best to verify the specific requirements of each state where your business operates. Further, employers may consider providing voting leave even if it is not required by state law.
Conclusion
Employers should take this election season as an opportunity to review their policies that touch on employee political speech and voting leave. Election season is an exciting time but also can elicit passionate conversation on sensitive subjects that may not be appropriate for the workplace. Further, employers must provide state-protected voting leave, even if an employee has otherwise exhausted their allotted leave bank. If employers identify any gaps between their policies and past practices, they should update all policies to comply with federal and state law.
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.
