From COVID-19 policies to social unrest to election campaigns, Americans remain sharply divided on a number of issues.
Unfortunately, our polarized political climate often becomes a source of conflict in the workplace. A casual conversation about current events can quickly deteriorate into a heated argument. Political speech at work can lead to a negative work environment that hurts morale, productivity, and customer service.
What steps can employers take to prevent political arguments from harming the business? To what extent are managers allowed to regulate employee political activity, in the workplace and on social media? In this article, we review the legal considerations when developing policies on these matters.
Freedom of Speech in the Workplace
Is there a right to freedom of speech at work? In most circumstances, employers may establish policies restricting political activity by employees, both on and off the job. Examples might include rules against harassment, threats, or bullying co-workers over differing political views. Employers may also restrict social media posts and other off-duty activities which would be harmful to the company.
The First Amendment to the U.S. Constitution states that “Congress shall make no law…abridging the freedom of speech.” In other words, the Constitution protects freedom of expression from encroachment by the government. It does not prohibit private employers from regulating speech by employees in the workplace. Federal law does not prohibit discrimination based on political party membership or beliefs.
Managers need to be aware that there are federal, state, and local laws that impact some political activity in the workplace. In addition, public sector employees are subject to a unique set of protections and restrictions.
National Labor Relations Act
As expected, the NLRA comes into play when dealing with politics in the workplace.
Company policies must comply with employee protections under Section 7 of the National Labor Relations Act. Section 7 allows private-sector employees to engage in “concerted activities,” including discussions of wages, hours, or working conditions. These conversations sometimes include comments about elected officials, political candidates, or specific laws and regulations.
The National Labor Relations Board considers two criteria when determining whether a workplace policy is lawful under Section 7. First, the NLRB determines the potential impact of the policy on employees’ rights. The second consideration is whether the employer has legitimate justifications that outweigh any adverse impact on Section 7 protections.
The NLRA also protects work-related comments on social media, if they are made within the context of “protected concerted activities”. Employee posts are generally not protected if they are merely work-related “gripes” that are unrelated to Section 7 activities.
Workplace policies must be carefully designed to avoid disciplining or terminating employees based on protected categories under federal, state, or local discrimination laws. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, national origin, sex, or religion. Other federal discrimination laws enforced by the EEOC include the Americans with Disabilities Act, the Age Discrimination in Employment Act, and the Genetic Information Nondiscrimination Act.
Employers must also implement policies that prohibit unlawful harassment, which could include name calling, insults, racial slurs, or other verbal comments. Employees engaged in political speech at work and online, must refrain from using language which could be perceived as a form of harassment.
Public Sector Employees
The Supreme Court has held that government employees enjoy First Amendment protection when speaking as private citizens about an issue of public concern. For example, a public school teacher is free to express a personal opinion on policy issues such as school funding.
However, the employee may be subject to disciplinary action for statements made in the course of his or her official duties. First Amendment protection for public sector employees also depends on the content and context of the statement. Comments pertaining to policy issues, for example, would enjoy greater protection than conversations related to internal employment matters.
The Hatch Act restricts federal employees in the executive branch from engaging in some political activities. They may not use their official authority to influence or interfere with the outcome of an election, for instance. They are also barred from engaging in many partisan political activities. However, federal employees are permitted to express opinions on political issues while off duty. They may participate in some political activities such as donating to a campaign or attending a political rally.
State and Local Laws on Employee Political Activity in the Workplace
Some states and local jurisdictions have enacted laws protecting employee political activity and social media usage.
Illinois prohibits employment discrimination based on political party membership or engagement in election-related speech or activities. Employers also may not discriminate or retaliate against employees for lawful off-duty usage of social media platforms.
Missouri bars employers from discriminating against employees based on political beliefs or opinions. Employees are also protected from coercion with respect to voting for or against particular candidates or ballot issues.
Employer Policies on Political Activity and Social Media
Policies on political activity should emphasize respect for team members and establish clear expectations for acceptable behavior. Managers and supervisors should receive training on how to prevent, identify, and respond to inappropriate conduct. All handbook policies must be implemented consistently to limit the risk of complaints or lawsuits.
It is acceptable for employees to engage in friendly conversations about current events and to have different opinions on various issues. It is not acceptable when a disagreement escalates into hostile or distracting behavior, or leads to allegations of harassment or discrimination.
Employers may restrict access to company-owned computer systems for purposes unrelated to the business, such as transmitting political content. Dress codes may prohibit political apparel such as campaign buttons or t-shirts. Managers may also ban visual displays that could provoke conflict or distraction, such as political bumper stickers, posters, or photographs.
Inappropriate social media postings and off-duty conduct may also be subject to disciplinary action. Employers may prohibit content which could incite conflict at work, or which could lead to accusations of discrimination or harassment.
At McMahon Berger, we understand the importance of encouraging a spirit of respect and cooperation among employees. Our experienced employment attorneys help companies develop handbook policies that comply with all applicable laws and promote a positive work environment.
If you’re looking for ways to address employee political activities and social media usage in your organization, please contact McMahon Berger today.
The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.