I freely admit that I’m an insurance geek and that I (sadly) obsess about things like EPLI coverage and risk management. A few weeks ago, I was watching the DC protests on television (my niece was among the protestors), and I immediately got to thinking: “What would happen if someone showed up at work tomorrow with a so-called ‘pussy hat’ on? Could a manager tell the employee to take the hat off in order to avoid political strife in the office, or would the company end up with a lawsuit on its hands?”
It turns out that this was no idle wonder. A county judge in Texas did show up for work in a “pussy hat.” You can read the story here. (Apparently, the matter was investigated and she was cleared of inappropriate behavior.)
The truth is, though, that with certain limited exceptions, employees do not have an unfettered right to engage in political speech at work. The First Amendment applies only to government action, and does not limit the rights of private employers to regulate or prohibit political “pontification” in the office. In fact, private employers generally may refuse to hire, and may even fire, employees because of their political views. This can get into dangerous territory, though. Take, for example, the very contentious issues of abortion or immigration. It’s very easy to see how a few ill-advised comments by a supervisor could result in a claim of discrimination on the basis of gender or national origin. From a risk management perspective, it’s definitely best to steer away from all political discussions at work, and to make clear in your employment manual that political discussions in the workplace are frowned upon (except as permitted by law, which I’ll discuss in a moment) because of the effect on workplace morale and productivity.
Prohibiting all political speech can also result in problems if it’s not handled properly, though. The National Labor Relations Act, for example, restricts an employer’s right to limit non-supervisory employees’ communications about wages, hours, and other terms or conditions of employment. These restrictions may apply not only when the protected communications occur in the workplace during working times, but also when they occur outside the workplace during non-working times (like, for example, on social media). The NLRA protects non-union employees as well as union-represented employees. The National Labor Relations Board has long recognized that all non-supervisory employees have the right to engage in concerted communications about matters such as pay, benefits, and workplace safety.
You can see the problem. If an employee starts proselytizing about his or her candidate in the workplace by saying “Vote for Jefferson Smith, he’ll make New Jersey great again,” that can safely be prohibited. But what if the employee says: “Vote for Jefferson Smith, since his positions on workplace safety and the minimum wage are in our employees’ best interest”? Then things become more problematic. The General Counsel of the NLRB has opined that an employer may not interfere with political speech where there is a “direct nexus between employment-related concerns and the specific issues that are the subject of the advocacy.”
You also have to check the different laws of the states in which your business is operating. New Jersey, for example, has a number of restrictions that may apply. Here, for example, employers can’t issue pay envelopes that show the name of any candidate or any political motto. As another example, within 90 days of an election, employers can’t display in the workplace any sign containing a threat that if a particular party or candidate is elected, work will cease, the shop will close, or wages will be reduced. New Jersey also prohibits employers from requiring employees to attend employer-sponsored political meetings.
What about the “pussy hat” issue, though? It’s not too hard to imagine a plaintiff’s lawyer arguing that, by forcing the employee to remove the hat, you were engaging in gender discrimination. So, what’s an employer to do?
Clear (and fair) communication and even-handedness are the key. Maybe I have too much faith in mankind (personkind?) but if a policy is clearly expressed, and the reasons for the policy are_explained, your chances of running into trouble are minimized. Your manual, for example, might say that political speech in the workplace is discouraged – except as allowed by the NLRA or other applicable law – because:
- You could lose a friend. Politics are a volatile topic. Just look at social media! It’s in everyone’s interest to keep conflicts to a minimum in the workplace.
- You could cost us a client. If a client or customer hears you discussing politics, that client or customer might take a different view of you (or the company) personally and professionally. Remember, people generally do business (and continue to do business) with people they know, like and trust.
- It’s a waste of time. We have a lot of work to do here, and your co-workers may believe different things. Accept it, agree to disagree and move on. Life’s too short.
The key is to make clear the legitimate business reasons for refraining from political speech in the workplace. Will some people still be offended because they feel that you’re trampling on their “right to free expression”? Probably. But they’ll get more work done, and you should be in the clear legally.