Election Fever: Navigating Political Expression in the Workplace

With the general election fast approaching, political discussions can feel inescapable. Campaign slogans regularly appear on signs and clothing, and many conversations appear ripe to raise a political issue of some kind. Nowhere is this more challenging to navigate than the workplace, where political debates may impede the goals of professionalism, civility, and productivity.

Many employers and their employees are uncomfortable when work and politics intertwine. For instance, in a survey of 1,000 U.S. employees, more than half (51%) believed that “workplace political discussions hurt the work environment.”¹ Nonetheless, employers should be aware of the legal risks associated with political messages in the workplace to respond effectively to the issues that may arise. Employers may wonder: “If an employee expresses or displays a political message in the workplace, how should I respond?”

This article provides an overview of the legal landscape and offers practical tips for the starting point of navigating these issues. In addressing these issues, Buchanan’s Labor and Employment attorneys are available to advise on best practices for the specific circumstances of your workplace.

How does the law treat political expression in the workplace?

Expressions of political affiliation, such as displaying campaign signs or wearing T-shirts, hats, or buttons with political slogans, are considered “speech” subject to certain laws, some of which are described herein. Although the First Amendment protects individuals’ right to free speech and expression, this protection is limited to employment within the government. Private employers, by contrast, generally have a wide latitude in regulating the type of expressive activities allowed in the workplace. This latitude is not unlimited, however, and workplace guidelines must be crafted to avoid inadvertently restricting speech that may be protected.

What activity may be protected?

Although there is no federal constitutional right to free speech in private workplaces, some political speech may nonetheless be protected under applicable employment laws. Under the National Labor Relations Act (NLRA), employees have the right to engage in “concerted activities for the purpose of . . . mutual aid or protection.”² This usually means engaging in activities that seek to improve the terms or conditions of the work arrangement, such as circulating a petition asking for better hours or openly discussing pay and benefits.³ Therefore, political expression could receive NLRA protection if it has an underlying connection to work-related matters. A shirt that says, “Vote for Candidate A because they will improve factory conditions in our industry,” or a button praising “Candidate B’s pledge to raise the minimum wage” arguably falls within the intersection of political speech and speech protected by the NLRA.

Further, some states have enacted laws that provide specific protections for private sector employees’ political activities. In California, for example, employers cannot try to control or direct an employee’s political activities or affiliations.⁴ Colorado law prohibits employers from firing or threatening to fire employees based on their connection with a political party.⁵ Connecticut explicitly extends First Amendment free speech rights to employees in private workplaces, subject to certain limitations.⁶ Due to the varying levels of protection each state offers, employers must be cognizant of the law in each jurisdiction where they operate. This impacts the development of policies regulating workplace political speech and the handling of any issues that may arise.

What activity may not be protected?

Communications are not protected if they violate state or federal anti-discrimination laws, regardless of whether they would otherwise be protected by the NLRA or state law. Political statements or topics ostensibly about public policy can easily veer into territory related to a person’s membership in a protected class. For example, state law may allow an employee to express support for a candidate’s immigration policy, but if this escalates into severe or pervasive negative comments about a particular country, another employee may arguably set forth a prima facie race or national origin claim, depending on the circumstances.⁷

Best practices for employers

• Implement policies that foster a respectful and inclusive atmosphere. An outright ban on all forms of political activity may run afoul of the NLRA or applicable state laws, but carefully crafted policies promoting civility can help ensure that people of all political affiliations are able to work together effectively.
• Communicate these policies clearly to employees and train supervisors on how to enforce them consistently. Inconsistent application may lead to discrimination or retaliation claims.
• Remain up to date on applicable state and local laws governing workplace speech and anti-discrimination protections. Legal counsel can help ensure workplace policies comply with this evolving legal landscape.

Conclusion

Although today’s political environment can pose complex challenges, employers can mitigate their risk with well-crafted policies that consider the legal implications of workplace political expression.

Buchanan’s labor and employment attorneys diligently monitor legal developments in this area. They stand ready to address any inquiries your company may have on navigating political activity in the workplace while ensuring compliance with applicable laws.