By Aaron Warshaw, Ogletree Deakins
The United States is certainly as divided as ever along partisan lines leading up to the November 8, 2018 midterm elections. Many employers across the country are uneasy about managing heated political discussions in their workplaces without running afoul of employment laws. Below are answers to some of employers’ frequently asked questions about political expression in the workplace.
What are common employer concerns regarding employees’ political expression?
Political expression on social media is a real concern in the workplace, especially when employees choose to be online “friends” with coworkers. Another issue is that some politicians have made public statements that, if uttered in a workplace, would possibly lead to an employment termination. These statements may give some employees the false impression that similar speech is appropriate at work. As a result of this political rhetoric, news coverage, and midterm election advertisements, it should not be surprising that extreme partisanship and malapropos speech have recently found their way into the workplace.
Do First Amendment protections apply to employees expressing their political views in the workplace?
The First Amendment’s free speech protection is perhaps one of the most misunderstood legal frameworks in the workplace. To be clear, there are typically no free speech restrictions or considerations for private employees because the First Amendment protects against government actors only. As long as the workplace restrictions do not otherwise violate the law, private employers are free to dictate what is and what is not considered acceptable workplace behavior. Employers may choose to remind their workforces of this in a couple ways, through either routine anti-harassment training or timely reminders to engage in civil discourse during election season.
What can employers do if political discussions get out of hand?
It depends upon the circumstances, including what the employee specifically said, how coworkers reacted, and whether the employer previously warned the employee about similar conduct. Discipline may be appropriate if the employee’s speech becomes aggressive or unprofessional, if the speech reflects poorly on the employee’s judgment, or if the speech is in violation of anti-harassment and equal employment opportunity policies. Employers should consider treating employees the same when addressing potential misconduct issues, regardless of whether or not they are top performers.
What if employees engage in name-calling based on race or national origin when arguing over politics?
There are no special rules or restrictions on enforcing an anti-harassment or equal employment opportunity policy when the speech is political in nature. It may be helpful to have effective policies and training in place in an effort to prevent and react to such conduct, and use election season to remind the workforce that the company takes its equal employment opportunity commitments seriously.
Can employers ask employees not to discuss certain political matters on social media or monitor the social media accounts of their employees?
A policy prohibiting employees from discussing politics on social media could violate state and local laws that prevent employers from restricting lawful off-duty activities. Another issue is that such restrictions could limit protected concerted activity, such as union membership or other workplace activities protected by the National Labor Relations Act (NLRA). Though recent studies have shown that many employers do in fact monitor their employees’ publicly available social media accounts, employers may want to do so with caution.
How can employers discuss policies limiting political discussions at work with their employees?
Employers can generally remind employees about their obligations under the company’s policies, including anti-harassment and equal employment opportunity policies, and to always treat one another with respect and civility. Management is always entitled to remind employees that they are at work to perform their jobs and that they are free to discuss politics during their free time. However, it is likely impossible to completely prevent political discussions in the workplace. Healthy discourse among employees with different viewpoints can in fact be productive as long as it does not get out of hand.