Submitted by Bob Dunlevey and Nadia A. Lampton, Taft/Law
Our country’s contentious political environment is not likely to end soon. Unfortunately, this charged atmosphere can find its way into the workplace quickly and can create considerable friction and unrest among employees. In time, productivity suffers and claims of harassment, bullying and even discrimination can be spawned. So, employers must take action now to establish, publish, and fairly enforce effective policies to curb unacceptable conduct and, at the same time, to understand what employee political activities may be legally permissible in the workplace.
Most importantly, remember that private sector workplaces do not have “freedom of speech” protections accorded to employees. But, if their political comments somehow implicate wages, hours and conditions of employment, the employees’ related comments and activities may be protected by the National Labor Relations Act – even in a non-union setting. Employee protections may also exist under Title VII of the Civil Rights Act and other state and federal laws. For example, if an employee wears a button supporting the $15 “living wage” initiative, this may easily be protected and no action may be taken by the employer. But, when the employee is merely engaging in advocacy, such as supporting the “defund the police” movement, the conduct is not protected. Also, approximately 11 states have either free speech, political activity, or off duty conduct laws – know the laws in your jurisdiction. Here are some tips for getting beyond this election cycle:
Promote a culture of respect and civility in the workplace and train your supervisors to do the same;
Avoid “top management” pushing particular political views and supervisors engaging in political discussions with fellow employees;
Consider establishing policies which control or curtail the discussion of politics in the workplace such as one which requires employees to refrain from workplace expressions in support of a political party or candidate. Or, at least, prohibit such during actual working time and in working areas. But, take into consideration the culture of your particular workplace and applicable laws.
Establish and enforce uniformly work rules that prohibit harassment, bullying, retaliation, and inciting confrontation and violence in the workplace;
Reaffirm your policies on political activity by workplace postings and a five to ten-minute presentation to the entire workforce as soon as possible to discuss the need for civility and the need to have an environment free of intimidation – a workplace conducive to work. Encourage your employees to put the election behind them and conduct business as usual. Also, invite employees to bring forth claims of violations of your policies promptly;
Limit distractions in the workplace such as TVs turned to Fox News and MSNBC;
Consider implementing a dress code policy prohibiting the display of purely political buttons and logos in the workplace - but remember, unionized operations generally cannot unilaterally promulgate policies or change policies without negotiating with the union first, and some laws may limit what employers may do to restrict employees from wearing such things as Black Lives Matter masks when they arguably relate to workplace-related issues or practices. Also, having permitted employees to wear other messaging in the past with impunity may limit an employer's options in addressing these specific issues now;
Take efforts to convey to each and every employee that they should be conducting “business as usual” and remind them from time-to-time;
Avoid attempts to control off duty conduct and comments, such as in social media, unless such conduct directly impacts the workplace, the employees, or the employer's business;
Determine on a case by case basis whether the political comments and activities are legally protected or whether they actually warrant disciplinary action. If warranted, discipline, not for the content of comments (viewpoints), but instead for the unacceptable or disruptive behavior;
Consult labor and employment counsel with respect to circumstances which may give rise to a claim by an employee and with respect to the specific language of your policies.
If you need assistance in dealing with these and other labor and employment law issues, contact Bob Dunlevey, Board Certified Specialist in Labor and Employment Law, at (937) 641-1743 or Nadia A. Lampton at (937) 641-2055 at Taft/Law. This guidance is an overview of complicated legal issues and is not intended as specific legal advice.