With an election quickly approaching, employers may be wondering how much political talk amongst employees they should allow. Such discussions may distract workers from completing tasks as well as create or increase tension or discord between coworkers. Moreover, many issues discussed during campaigning involve topics that are protected under various statutes. For example, many political conversations include employment matters, such as minimum wage, unions, and laws regarding employee leave. These topics are protected under the National Labor Relations Act (NLRA). Additionally, political discussions may also include references to matters protected by employment statutes, such as race, gender, and religion. Discussions about immigration policies or the right to marry may blend into broader conversations about these protected traits. These types of discussions can create tension and hostility in workplaces and may give rise to discrimination or harassment claims.
The First Amendment freedom of speech protections only apply to government action. Private employers are typically free to restrict political speech at work, as well as hire, fire, or make employment decisions because of an individual’s political views (although, not recommended). However, some states have legislation regulating political discrimination in the workplace, so employers should ensure any employment policies are in compliance with applicable regulations.
For example, the District of Columbia prohibits discrimination by an employer because of an employee’s political affiliation or “belonging to or supporting a political party.” In some counties in Maryland, including Howard and Prince Georges Counties, it is illegal for employers to discriminate on the basis of an employee’s political opinion.
Employers interested in limiting political discussion in the workplace should create clear policies, with any legally necessary exceptions. Employers must be sure to enforce these consistently to avoid potential claims of employment discrimination. Typically, employers should limit discipline or discharge for violation of these policies to situations where an employee’s speech or conduct interferes with duties at work or disrupts the workplace. Below, some employee and employer rights are discussed regarding different types of politics in the workplace.
The NLRA protects the rights of employees to engage in collective bargaining. Specifically, the NLRA protects employees’ rights to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” These protections also may extend to employee speech regarding the terms and conditions of employment. Often, political conversations involve labor or working conditions. Such political speech is likely protected by the NLRA. Political speech not related to the workplace or work conditions are typically not protected under the NLRA and can be restricted in the workplace, unless allowed other local regulations.
Political Activities When Off-Duty
Employers should be more cautious when restricting employees’ conduct when they are off duty. Typically, such restrictions are only allowed if there is a legitimate business reason for the restriction. Legitimate business reasons may include the company’s reputation, legal liability for the employer, or disruption to the workplace. If employers are considering creating employment policies regulating off-duty employee contact, they should consult with counsel to ensure that a legitimate business reason actually exists to justify the restrictions, or employers may be subject to discrimination claims.
Employers are permitted to have and enforce attendance policies, as long as such policies are consistently enforced. If an employer has such a policy, and an employee misses work to attend political events, such as rallies or demonstrations, such conduct would violate the attendance policy and the employer can enforce the policy.
If the political event does not take place during work hours, an employee’s attendance at the event would likely not be in violation of the employer’s attendance policy. State and local regulations may be applicable to restrict an employer’s ability to regulate off-duty conduct. Typically, employers should refrain from disciplining or discharging employees for lawful political off-duty conduct.
In 2006, the National Labor Relations Board (NLRB) concluded that attendance at a protest was not protected. However, more recently in 2018, the NLRB issued an advice memo concluding that employee attendance at an immigration protest was protected. There, Latino employees missed work to attend an immigration rally after complaining to their employer about mistreatment. The NLRB concluded that attendance at the rally was intended to bring attention to the grievances they had made to their workplace, and, thus, the activity was protected. In light of this determination, employers may choose to be cautious of disciplining employees for attending political events, even during work hours, if the focus of the event is employment or labor issues.
Employers are typically permitted to prohibit employees from campaigning or distributing political materials while at work on work hours. Such non-solicitation policies should be enforced consistently for political and non-political purposes. However, employers should keep in mind the NLRA exceptions protecting employees’ rights related to protected concerted activity. Speech or materials about union related activities and the terms and conditions of employment are protected.
Employers are free to enforce reasonable dress codes in the workplace. Such dress codes may prohibit employees from wearing badges, buttons, and clothing with political messaging. Again, badges or buttons showcasing union messages are typically protected under the NLRA, unless there is a legitimate business purpose for restricting such items.
Use of Employer’s Equipment
Generally, employees do not have the right to use company equipment, such as printing materials, copy machines, and bulletin boards, for nonwork purposes, including political campaigning. Employers may have a right to also limit employees’ use of work computers and email for political purposes; however, the NLRB has previously found that employees typically have a right to access work email systems to engage in protected activity under the NLRA.
Employer Influence on Voting Activity
In the District of Columbia, employers may not threaten or intimidate employees from signing any initiative, referendum, or recall petition, or to vote for or against or abstain from voting on any initiative, referendum or recall. Employers are also prohibited from paying or offering to pay employees for registering to vote or for voting.
In Maryland, influencing an individual’s voting activity through intimidation or bribery is prohibited. Employers are forbidden from exhibiting in the workplace any threat intended to influence the political opinions or actions of employees, during the 90 days prior to an election. Additionally, employers may not include in “compensation materials” any statements to influence the political opinions or actions of employees.
In Virginia, the use of threats or bribery to influence how individuals vote is prohibited. Additionally, political action committees may not use funds obtained through actual or threat of physical force, job discrimination, financial reprisals, or required as a condition of employment.
Voting Leave Laws
In Maryland, employers are required to allow employees to take two hours of paid leave to vote, so long as the employee does not have two hours of continuous off-duty time while the polls are open. Employers may require employees to show proof that they voted.
Virginia and the District of Columbia do not have any laws requiring an employer to provide employees either paid or unpaid leave to vote.
Tips for Employers:
- Consider reviewing/creating a clear employment policy that adequately states the workplace policy on political speech and activity;
- Consider emailing employees or posting a notice reminding employees of the application of the employment policies;
- Ensure these policies are enforced consistently;
- Ensure required exceptions for NLRA protected activity are included in relevant policies; and
- Train HR and employees about workplace policies and what type of conduct may violate those policies.
Employers should keep in mind that if they choose to intervene in matters of politics in the workplace, enforcement of workplace policies should always be consistent amongst employees. It’s important that supervisors’ political views don’t lead to inconsistent enforcement of policies.
Before disciplining employees, especially termination, employers should consider whether the conduct is protected by law, either federal or state; whether the conduct violated an employer policy; does the company have a legitimate business interest in restricting the speech or conduct; and how have similar situations been handled previously. Employers that are unsure about whether or not political speech or conduct is protected should consult with experienced counsel before taking action that could potentially violate employees’ protected rights.
For additional guidance, contact the employment law experts at General Counsel, PC today at 703-991-7973.