Now that the two major parties have presumptive presidential nominees, the heated discussions and press coverage of the primary season will turn to conventions and the general election. Divisive political discourse may continue to escalate. While many employees will heed the familiar adage not to discuss politics and religion in public, political discussions may enter the workplace and invite debates, arguments, and tension. Consequently, Employers should understand what political conduct can be regulated or prohibited in the workplace, and what political conversations must be allowed.
Some employees may presume they have a First Amendment right to free speech, unaware that those guarantees apply only in the public sector. While most private employers have considerable leeway when crafting workplace rules about whether politics can be discussed during working time, laws vary from state to state. For example, laws in states such as California, New York, and Washington DC (and some cities) prohibit employers from taking job related action based on political affiliation. Other states and municipalities, such as Colorado and North Dakota, have laws limiting an employer's ability to take action based on off-duty activities (which could include political activity). And, given the nature of some of the key issues in this year's national elections (such as immigration reform and the proper division between church and state), all employers still have an obligation to ensure compliance with the various federal laws against discrimination, as well as with Section 7 of the NLRA, given the NLRB's continued aggressive enforcement of that provision of the law.
Earlier this month, the EEOC published proposed revisions to its Enforcement Guidance on National Origin Discrimination, signaling an emphasis on enforcement in areas such as immigration status, "English only" or accent policies, and discrimination against foreign nationals. When this emphasis is coupled with the public debate on the issue of immigration reform and national security, employers will walk a thin line when determining what political discussion is appropriate in the workplace and what discussion could violate anti-harassment and anti-discrimination policies.
Similarly, the continued emphasis of the National Labor Relations Board on Section 7 concerted activity will affect policies employers may institute or enforce. For example, it may be appropriate and lawful to enforce a "no political buttons" or “no political speech on t-shirts” rule (assuming the employer is not subject to a state law to the contrary). The employer must recognize, however, that a difference may exist between a union worker wearing a button enforcing a particular candidate and wearing a button stating that the union supports that same candidate.
Thus, as the conventions and general elections approach, employers should consider the following:
- Remind employees of all anti-harassment and anti-discrimination policies;
- Remind employees that a discussion of politics does not give license to bully or harass other employees, notwithstanding what is reported on the news;
- Private employers in many states (but not all) can ban political discussions among employees or between employees and customers, vendors or other third parties (but if this choice is made, the policy must be enforced consistently);
- Review and update dress code policies if the employer wants to prohibit political speech on clothing, buttons, etc.; and
- If the company maintains a "non-solicitation" policy, make sure that it is enforced consistently.