Everyone has experienced "workplace politics" (in which Type A employees claw their way to the top while attempting to crush or humiliate coworkers) as well as "politics in the workplace" (in which employees argue about candidates for office and issues of interest). The former is an unfortunate fact of corporate life but the latter is an avoidable annoyance.

We now are in the final stage of the current election cycle, and given many employees' intense interest in candidates and issues, some employers are losing productivity, attention to customer service and worker focus as personnel discuss or advocate their opinions. Private employers often can reassert control, however, by recognizing that two commonly held beliefs about "politics in the workplace" are, in fact, simply misconceptions.[1]

Misconception 1: Employees must be allowed to talk 'politics' at work

Wrong. Employees (and many employers) commonly but mistakenly believe that the First Amendment to the U.S. Constitution guarantees "freedom of speech" at work. In fact, the First Amendment applies only to government action and does not limit the rights of private employers to regulate employees' communications nor provide any constitutional right for those workers to express thoughts or opinions at work. As a result, with few exceptions (discussed below), there is no general right of "free speech" in the offices and factories of private employers. In other words, although employees may be entitled to express their views freely on their own time or on a soapbox in the park, they typically have no such rights at work. Absent rights provided by one of those limited exceptions, there are no legal protections for political activities in the workplace. In fact, private employers generally may refuse to hire, adjust pay/benefits and discharge "at will" employees because of their political views.[2] In short, "political discrimination" often is legal discrimination.

Many employers do have policies limiting the discussion of political issues at work because of the risks of "free speech" in the office/factory. For example, although there is no general federal law prohibiting employment discrimination on the basis of political affiliation or actions, seemingly neutral conversations about "politics" can lead to claims of employer discrimination, harassment or retaliation violating federal or state discrimination laws. Workplace debates about particular candidates often include mention of their genders, races or religions (in the context of fitness to hold office) and/or their views on hot button social issues such as abortion, "family values," immigration and healthcare, polarizing issues on which there frequently are strong and opposing views among employees of different genders, religions, national origins, etc. The potential for heated disagreements — and inflammatory, ill-advised comments — is obvious. Unfortunately, such comments sometimes result in claims of discrimination or retaliation in which it is alleged that "my supervisor is biased against [women/non-Christians/Hispanics] as shown by his/her comments about [healthcare/abortion/immigration policy]" or "the company punished me because I disagreed with my boss about [a social issue implicating gender, nationality, or religion]." Further, recent public attention on schoolyard "bullying" seems to have prompted claims of "bullying" harassment by employees (not always supervisors) forcefully advocating their political opinions to unreceptive co-workers. It is understandable, therefore, why many employers simply elect to minimize such controversies by prohibiting any "politics" at work.

Two Exceptions

There are two general exceptions to the principle that private employers may legally implement a "no free speech or political activity in the workplace" policy.[3]

First, the National Labor Relations Act (NLRA) restricts an employer's right to limit workers' communications about wages, hours and the terms or conditions of employment during non-work time in non-work areas. Importantly, many of the NLRA's provisions are applicable to non-union employers and protect even workers who do not belong to a union. For example, the National Labor Relations Board (the NLRB, the federal agency that enforces the NLRA) has recognized for many years that worker communications about such matters as pay, benefits and workplace safety are "protected concerted activity" if the employees communicate in an appropriate manner and do not disrupt business operations. Communications or activities by employees "in support of employees of employers other than their own" or that seek to "improve their lot as employees through channels outside the immediate employee-employer relationship" can be protected. Therefore, employees' statements and actions concerning political issues and events outside the workplace can be protected if they have a direct nexus to the workplace or to employees' terms and conditions of employment.

Fortunately, the NLRA/NLRB restraints are confined to such specified topics with a nexus to the workplace and employees' terms and conditions of employment, thus allowing employers to restrict workplace communications about all other "political" topics as long as any rules are uniformly enforced. However, drawing lines between protected concerted activity and unprotected political activity sometimes is difficult: an employer can legally limit workplace discussions of candidates for office but restricting communications about those candidates' positions on social issues touching the workplace (such as increasing the minimum wage; employees' healthcare benefits) risks an unfair labor practice charge.

Second, laws in some states provide protections for their residents. For example, several states have "free speech," "political activity" or "off-duty conduct" laws that give employees rights not provided by federal law or the laws of other states. A cross-section of state laws is set forth at the bottom of this alert. As can be seen there, they vary widely in scope and content. As a result, employers — particularly multistate employers — must carefully craft their own policies.

Misconception 2: Employees must be allowed to display and distribute political materials and 'campaign' in the office/factory

Wrong again. Employers have the right to ban in their workplaces any non-work-related activities and, as noted above, there is no general federal protection for employees' political activities. Subject to the restrictions of the NLRA, the discrimination laws and any applicable state law, employers can prohibit employees from: (1) displaying campaign or issue-oriented materials at their workstations; (2) distributing "political" materials in the office/factory; (3) soliciting support or money for candidates or issues; (4) wearing shirts, buttons or other items advocating candidates or issues; and (5) using the employer's computers to express their thoughts on social media. Employees who violate such policies may be legally disciplined or discharged.

However, complying with the NLRA and the discrimination laws sometimes is tricky in the context of distribution/solicitation/display. For example, an employee legally can be prohibited from displaying or distributing a "Vote for Smith" poster or campaign button but likely could not be barred — without risking an unfair labor practice charge — from displaying posters or distributing leaflets saying "Vote for Smith — She'll Raise the Minimum Wage" or "Join [union name] in supporting Smith." Similarly, an employee could be prohibited from wearing a "Vote 'Yes' on 5 — Raise Speed Limits" T-shirt but not one with a message "Vote 'No' on 8 — Support Workers' Rights!" The same distinction applies to the solicitation of support for candidates or statements on social media pages — if the message has a nexus to the workplace, the conduct or statement likely cannot be barred unless it involves inappropriate means or actions (usually profanity or violence).

What Should an Employer Do?

There are several "next steps" for employers concerned about potentially work-disrupting, productivity-sucking, fury-inducing "politics in the workplace."

First, prepare and implement a strong "no political activity" policy having appropriate carve-outs for expressions protected by the NLRA or applicable state laws. As has been discussed, such properly drafted policies not only are permitted but also are widely thought to be an employer "best practice." It may be impractical (and dangerous, in light of the NLRA) to impose an absolute ban on political expression. Thus, a typical policy will: (1) limit employees' political communications (including distribution of campaign materials and solicitations of money or support) during working times in working areas, and (2) state that oral communications about political issues related to wages, hours and working conditions are permitted when all employees involved are on non-working time, and distribution of materials about those subjects is permitted in nonworking areas during non-working times, unless such communications disrupt operations or are inappropriate in tone or content (violent or profane). Employers also may wish to discourage supervisors (either formally or informally) from having political discussions with subordinates in order to minimize potential claims of discrimination, harassment or bullying. Of course, a policy must be tailored to fit any applicable state law.

If the employer's "politics" policy does permit some workplace discussions of candidates or issues, the employer also should periodically remind employees, perhaps by redistribution of existing "communications" policies, that the company insists on respectful treatment of all personnel, does not tolerate discrimination, harassment or retaliation, limits employees' access to and use of social media (again, be cautious about limitations concerning discussions of wages, benefits or working conditions), and will investigate employee complaints of mistreatment. Such reminders will make plain that political discussions also must comply with existing policies (and will be a helpful predicate to future discipline if "politics in the workplace" gets out of hand).

Second, the employer should enforce its "political activity" policy even-handedly. ("Even-handed" means not only consistent enforcement among all employees regardless of political affiliation or opinion but also consistency as to subject matter, that is, enforcing "no solicitation" as to both political campaign materials and any union or union-organizing materials. Allowing political but not union solicitations/distributions in the workplace will draw an NLRB unfair labor practice charge.) If a violation is suspected or a complaint is made, a careful investigation should be conducted and discipline issued as appropriate. It is important that any policy violation be based on the fact of or manner of the political communication and not its message. That is, employees should be punished for their behavior and not their ideas because content-based discipline is more likely to lead to claims of discrimination.

Conclusion

Employers need not lose control of their workplaces during the run-up to elections. A carefully crafted and uniformly enforced policy limiting political activities and "free speech" often will lower the risk of employee claims while increasing worker productivity.

Some State Laws Addressing Workplace "Political Activity"

California

The California Labor Code prohibits any employer policy: (1) limiting workers' participation in politics; (2) barring employees from becoming candidates for public office; (3) requiring workers to adhere to any particular political action/activity; or (4) "controlling or directing ... political activities or affiliations of employees." California law also prohibits adverse action against employees because of "lawful conduct occurring during nonworking hours away from the employer's premises." Given the apparent statutory/regulatory breadth of "political activity," California employers must be particularly careful in drafting policies. For further information, contact Holland & Knight lawyers Linda Auerbach Allderdice ( linda.allderdice@hklaw.com) or James Michalski ( james.michalski@hklaw.com) in Los Angeles.

Florida

There are no state laws addressing politics in the private workplace.

Illinois

An employer is not permitted to maintain a record of employees’ off-the-job political activities. 820 Ill. Comp. Stat. §40/9. For further information, contact Holland & Knight attorney Todd Steenson ( todd.steenson@hklaw.com) in Chicago.

Louisiana

State law expressly prohibits any employer policy which forbids or prevents employees from "engaging or participating in politics" or from becoming a candidate, and any policy that "controls or directs [employees'] political activities." Employers also are prohibited from threatening to discharge employees who "support or become affiliated with any particular political fashion or organization, or participate in political activities of any nature or character." Significantly, Louisiana law permits imprisonment for violations!

Maryland

During the 90 days prior to an election, employers are forbidden from exhibiting in the workplace any threat intended to influence the political opinions or actions of employees.

Massachusetts

Employers are prohibited from attempting to influence an employee to give or withhold an employee's vote or an employee's political contribution. Employers are also prohibited from taking an adverse employment action against an employee — or rewarding an employee through higher wages or favorable employment terms — because of the giving or withholding of a vote or a political contribution. For further information, contact David Santeusanio ( david.santeusanio@hklaw.com) in Boston.

New Jersey

State law prohibits employers from attempting to influence employees to vote or to not vote or to vote/not vote for any particular candidate, and from requiring workers to attend an employer-sponsored meeting or communicating about the employer's opinions about political matters (including party affiliations).

New York

The state's "off-duty conduct" statute prohibits employer discrimination based on an employee's "political" or "recreational" activities, including running for public office, campaigning for candidates or participating in political fundraising activities. For further information, contact Holland & Knight lawyer Edward Frischling ( edward.frischling@hklaw.com) in New York.