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Posted October 21st, 2020 in Top Stories, Legal Insights with Tags ,

Politics in the Workplace: When Political Speech Goes Against Employer Policies

With the presidential election looming, discussions about politics are happening in the workplace now more than ever. In the current political environment, these conversations may be disruptive and may not align with Equal Employment Opportunity and Harassment-Free Workplace Policies, diversity and inclusion goals, and organizational brands. This means that HR professionals and other supervisors walk a very fine line as they draw distinctions between what violates or contradicts employment policies versus free speech.

What’s the Law?

The First Amendment guarantees a citizen’s right to “free speech,” but it doesn’t apply to private employers. In addition, political party affiliation and political speech are not protected under the law such as race and gender as well as other characteristics or behaviors.

Some state laws do protect employees from being disciplined or discharged based on political affiliation, voting activity, or lawful off-duty activities—so long as that off-duty activity doesn’t put the employer or its brand at risk. Labor law expands this to include an employee’s right to engage in “concerted activity,” which can include employees mutually discussing topics touching upon working conditions. But employers can limit how employees express themselves when on-the-clock and have the ability to discipline or terminate, if necessary, those who act/speak unprofessionally or create disturbances.

What Can and Can’t be Disciplined?

  • In assessing whether speech that happens to be political is inappropriate, employers should rely on its existing policies governing equal employment and a harassment-free workplace.
  • Seek to treat political speech like any other speech in the workplace—i.e., focus on disruption rather than politics.
  • Speech that is critical of the employer may be protected, yet it may still result in discipline if that speech is profane, defamatory, or malicious against the company or its managers.
  • Speech that is disruptive or violative of employer policies may result in coaching or corrective action, even if it overlaps with the stance of one political party/candidate or the other, and even if it touches upon working conditions. Examples of this include:
    • Promotion or support of racial discrimination
    • Antagonism towards immigrants, a particular sexual orientation, or folks because of their gender expressions
    • Profane or malicious speech or communications
    • Sexist or sexual speech or communications
    • Threatening speech or communications

While there’s not an exhaustive list, the overall question that should be asked is whether the speech is disruptive or offensive, or does it contradict or undermine the employer’s brand, based on its content (as opposed to its alignment with one political party or another)?

Taking Steps to Address Workplace Speech

As the political discourse may continue to increase even after the election in November, employers must take proactive steps to prevent workplace disruption.

  • Consider reminding employees of the employer’s policies on diversity, equal employment opportunity, harassment-free workplace, and unlawful activities.
    • Encourage folks to review existing policies
    • Remind them that their speech and behavior may reflect upon the employer
    • Instruct that civility and respect in any conversation is always appropriate
  • For managers who are not subject to labor law protections and who can be considered acting and speaking on behalf of the employer, they can be more actively instructed on what behavior is appropriate. For example, managers may be instructed to:
    • Avoid engaging in any political speech or speech that could be considered political while they are performing work for the employer.
    • Avoid engaging in conversations with employees about politics or speech that could be considered political.
    • Don’t overreact to short discussions among employees but don’t permit significant distractions during working time.
    • Use progressive steps—beginning with a simple reminder or coaching—to ensure compliance with company policy.

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