Jun 1, 2012
By John A. Snyder, Jackson Lewis LLP
During a presidential election season, political discussion and debate are prominent, often at family functions, social gatherings and even at work. According to CareerBuilder’s last survey on politics at work, 36 percent of workers discuss politics at work, while 46 percent stated that they plan to discuss this year’s presidential election with their co-workers. Of those who discussed politics at work, more than one in five – approximately 23 percent – said it led to a heated work exchange or fight with a work colleague. At the same time, only about 25 percent of organizations have a written policy on political activities, according to a survey conducted during the last presidential election by the Society for Human Resource Management. Beyond the employee morale and productivity issues that may be implicated, political dialogue in the workplace also may create potential liability for employers. Conversations regarding candidates often focus on race, sex or religion and can easily provide potential grounds for harassment, race, religious, age and/or gender, among other forms of discrimination, retaliation or other types of workplace complaints.
Here is our Top Ten list to consider in determining whether your company is ready for the upcoming presidential election and current campaign season:
1. Do the First Amendment’s freedom of speech protections allow employees to express their political views in the workplace?
Employers have wide discretion when it comes to limiting the political expression of employees in the workplace. The First Amendment generally applies only to government censorship of speech. As such, the Constitution allows private companies to regulate speech, even to bar political discussion entirely. Public employees are more protected by free-speech rules, but even governmental entities can impose speech limits to ensure efficient operations. Some states, however, provide explicit protection for employee political expression. In general, regardless of a particular state’s rules regarding political expression in the workplace, an employer can discipline or discharge an employee for legitimate, business-related reasons, even if the conduct involves political expression at work. For example, if an employee’s political expression interferes with his/her work, disrupts his/her co-workers, or infringes upon a business objective, the employer can take action consistent with its written policies and practices. However, employers can run afoul of discrimination laws (including laws protecting political expression, religious beliefs, race, gender, religion and other protected characteristics) when there is evidence of disparate treatment, uneven application of the employer’s policies, or adverse or retaliatory treatment based solely upon an employee’s political expression.
2. Can an employer require its employees to support the employer’s political views?
Federal election laws allow corporations to persuade a “restricted class” of individuals to vote for or against a political candidate. The “restricted class” is defined as “executive or administrative personnel” who are employed by a corporation on a salary basis and have policymaking, managerial, professional or supervisory responsibilities. Executive and administrative personnel include a corporation’s officers, executives, managers and lawyers. However, outside the restricted class, a corporation’s communications to rank-and-file employees regarding the election of political candidates is more restricted than under federal election laws.
State laws may further prohibit all employers, including corporations, from requiring employees to support their political positions. New Jersey, for example, prohibits an employer from requiring employees to attend an employer-sponsored meeting or participate in any communication with the employer in order to communicate the employer’s opinion about religious or political matters. Similarly, Washington State prohibits retaliation against employees for failing to support a candidate, ballot position or political party. In addition, some courts have recognized an employee’s common law right to be free from employer-sponsored political expression. As a result of these statutory and common law protections, managers and supervisors should not share, and certainly not impose, their political views and opinions with their subordinates.
3. Can an employer prohibit political campaigning at work?
An employee’s focus at work should be job-related. Accordingly, an employer should regulate political campaigning at work through the enforcement of a non-solicitation policy, which prohibits employees from soliciting other employees for political purposes during working time. Employers should also immediately and consistently counsel and discipline employees who engage in political activities instead of performing their job duties during working time. In other words, employers should treat political campaigning at work as it would other forms of solicitation under its non-solicitation policies, whether it is for school fundraisers, charitable causes or other civic endeavors unrelated to work.
In the Internet age, political campaigning at work may go viral and may not be as readily detectable by employers as in years past. The proliferation of political blogs, Facebook, Twitter and other social networks with nearly every employee having a smartphone makes it easy for employees to find like-minded political supporters and focus on politics rather than their jobs during working hours. As a result, employers must implement and consistently distribute and enforce their electronic communications policies stating that their computer systems and devices are to be used for business-related reasons and that employees’ computer activity will be closely monitored. Employers may want to consider denying access to certain Internet sites at work, including social networks, to further restrict political activities at work, much like they would restrict access to limit non-work use of the internet to save bandwidth, avoid viruses and the like.
4. Can employers prohibit political displays at work (e.g., buttons, signs, posters)?
An employer can implement dress code policies that prohibit employees from displaying political items at work, such as buttons, pins, hats and other campaign paraphernalia, so long as the employer evenhandedly prohibits the display of all forms of non–business-related items. An employer may want to prohibit employees from wearing paraphernalia at work, in order to avoid the appearance that the employer adopts an employee’s political views. Employers can generally prohibit campaign signs and solicitations and can take control of the information posted within their workplace by enforcing their non-solicitation rules. While an organization may prohibit employees from posting political signs and asking for campaign donations even if it does not have a non-solicitation policy, such rules can prevent these types of issues before they start.
However, under the National Labor Relations Act (“NLRA”), employees have the right to display labor union insignia at work. Thus, an employee cannot be disciplined for wearing a union button that contains a political message (e.g., “Teamsters for Obama”) because the political message is likely outweighed by the protected union display.
Regulating and restricting political displays and expression at work does not mean that employers must purge the workplace from politics. Each employer must decide the extent of tolerable political expression or activity in the workplace based upon an understanding of its culture, workforce, business needs and client and marketplace sensitivities.
5. Can employers restrict employees’ off-duty political activities?
Individual states provide varied levels of protection for employees’ political expression, as well as other off-duty conduct. For example, states like Florida and Washington make it illegal to take adverse action against an employee on the basis of his/her political or voting preferences. Similarly, in Texas, employers cannot retaliate against an employee because the employee voted for a particular candidate or refused to discuss for whom he or she voted. States like California, Colorado and Louisiana go further and prohibit employers from preventing any employee from engaging or participating in politics, including running for elected office.
As a result, employers need to be careful about not discriminating against employees for engaging in political activity. For instance, companies should not take adverse action against an employee for engaging in lawful off-duty conduct such as supporting a specific candidate or being involved with a particular political party or organization. Likewise, discriminating against employees for holding political views or participating in off-duty activities on the campaign trail for candidates is often prohibited. For instance, employees can put bumper stickers on their cars in support of a presidential candidate or volunteer to pamphleteer or otherwise volunteer when off-duty for a political candidate.
Further, many unions along with their members are very politically active, so that union contracts often prohibit discrimination or sanctions against union workers based on their political activity. Union workers generally are protected from discipline for any activity outside of working hours and company property unless the employer can prove a direct negative impact on its operations, particularly those whose collective bargaining agreements have a privacy clause.
It is critical to understand the applicable state laws and other employer obligations concerning the protections afforded to employee political expression.
6. An employee mentions to his supervisor that the employee’s co-worker constantly tells him that a candidate should not become president because of his religion. Another co-worker tells colleagues at lunch that another candidate is too old to be president. What are some of the actions that should be taken by the employer?
As a threshold matter, the employer should follow established procedures for employee complaints. An employer must do what it can to ensure that political dialogue among employees does not turn into a discussion of protected characteristics. Workers in protected categories may feel alienated or isolated if they observe employees criticize a political candidate based upon their own protected characteristics. Consider how a discussion about a candidate’s age might impact his ability to operate as Commander-in-Chief could be part of a discussion that could be perceived as age-based discrimination. Similarly, the recent media attention surrounding the reignited “family values” debate has fueled discussions of gay rights, abortion and birth control. These and other political issues currently subject to debate can easily generate inappropriate workplace conversations.
For all these reasons, employers should publicize and distribute anti-discrimination and anti-harassment policies that include detailed complaint and non-retaliation procedures. Persistent political dialogue and discussion can be viewed by some employees as unlawful harassment or discrimination. If an employee complains of inappropriate behavior or unfair treatment based upon a discussion about politics or an individual’s political views, the employer should immediately investigate the complaint and take the necessary action to remedy the potentially offensive behavior as swiftly, thoroughly and seriously as any other discrimination or retaliation complaint it receives. Calling a discussion, debate or exchange among employees “political” does not obviate an employer’s need to investigate or take appropriate corrective action, particularly where a complaint has been lodged.
7. A devout Christian employee displays a Bible on her desk, and strongly urges co-workers to vote for pro-life candidates. Can the employer take disciplinary action against the employee for displaying the Bible and/or for discussing her politics?
Religion and politics are often intertwined because political candidates differ on issues rooted in individuals’ religious beliefs. An employer must distinguish between the religious and political aspects of the employee’s expression and conduct.
Discrimination on the basis of religion is prohibited under Title VII of the 1964 Civil Rights Act and analogous state laws. Under Title VII and other laws, an employer has an obligation to reasonably accommodate an employee’s religious practice, including the display of religious objects and artifacts, absent an undue hardship. The Equal Employment Opportunity Commission (“EEOC”) has issued written guidance regarding religious discrimination in the workplace. In the guidance, the EEOC stated that an employee displaying a religious object (e.g., a poster with the message “Jesus Saves!”) in his/her private office does not pose an undue hardship. On the other hand, if the employee sat in the main lobby through which all employees, visitors, clients and vendors must enter and displayed the religious object, it would likely constitute a hardship because it could be perceived as representing the employer’s beliefs and viewpoints.
Therefore, under existing EEOC guidance, an employee probably has a right to display the Bible on her desk in her office. By contrast, the employer can restrict the employee’s advocacy of pro-life candidates at work if it offends co-workers. The EEOC’s guidance, as well as applicable case law, makes it clear that religious expression directed toward employees by co-workers and managers may constitute harassment if it is abusive or persists after the employees to whom it is directed have made clear that it is unwelcome. In other words, an employer can prohibit an employee from repeatedly urging co-workers to vote for pro-life candidates if other employees complain that the advocacy based upon the employee’s religious beliefs is persistent and unwelcome.
Employers should train managers to be adept at assessing the disruption that religious expression in the workplace may cause, as opposed to simply presupposing that it may occur. Employers should also train managers at identifying possible alternative accommodations to avoid actual disruption (e.g., an unused break room for a prayer meeting). Finally, employers should incorporate a discussion of religious and political expression and the need for sensitivity towards others into any anti-harassment/anti-discrimination and non-retaliation training provided to managers and employees.
8. What are the general rules regarding use of corporate resources and soliciting contributions in the workplace?
Corporate resources generally cannot be used to underwrite fundraising for a federal candidate. Expenses, such as a corporate conference room, supplies or catering used during a fundraiser, must be underwritten by the campaign. Resources made available to the candidate must be charged to and paid for by the campaign at fair market value.
Absent a company non-solicitation policy that prohibits such solicitation, the law generally allows individuals to solicit contributions from their work colleagues provided that the contributions are voluntary and made without threat of reprisal or retaliation. While supervisors may be able to solicit contributions depending on workplace policies, such requests should not appear to be coercive. Lastly, if employees donate money to a campaign, it has to be their own money and not company money. “Straw person” arrangements with employees being reimbursed by the company for contributions must be avoided. Failing to do so can result in problems with the Federal Election Commission, not to mention potential criminal charges against the company. In addition, there may be additional protections that vary from state to state.
9. Does an employer have to provide employees time off to vote?
The majority of states protect employees’ right to take time off from work to vote. For example, California law provides an employee two hours of paid leave at the start or end of a shift if the employee does not have sufficient time outside of working hours to vote. Other states, such as Arizona and Tennessee, provide up to three hours of paid leave for employees to vote in an election. In Texas, it is a criminal violation for employers to refuse to allow an employee to vote during working hours unless the polls are open on Election Day for at least two consecutive hours outside the employee’s work hours. Thus, employers must be aware of and abide by state-specific voting laws.
10. What are some recommended steps employers can take regarding politics and political discussion in the workplace?
• Implement a non-solicitation policy that prohibits all forms of solicitation—including political campaigning—during working time.
• Implement an electronic communications policy that explicitly mentions that the employer’s computer system, including its internet, instant messaging and text messaging, is primarily for business-related use. Actively and consistently enforce a comprehensive anti-harassment and anti-discrimination policy that provides a clear mechanism for complaints and investigation. Remind employees of the company’s non-retaliation policy associated with lodging legitimate complaints.
• Remind managers and supervisors to avoid political conversations or discussions with their subordinates. You may also want to include a specific section in your company’s policies addressing political discussion in the workplace. To the extent that you limit political expression, limit only the types of expression that might harm productivity in the workplace, impact customer, client, vendor or similar relationships or otherwise disrupt work.
• Remind managers to report employee complaints, even if the complained-of conduct has political overtones. Remind managers of the company’s non-retaliation policy.
• Remind managers to evenhandedly enforce dress code and non-solicitation policies. Enforcement cannot be influenced by an employee’s political views or activities.
• Review state laws regarding employee political expression and voting leaves.
• Seek legal counsel before disciplining any employee for his/her political activities, including missing work to attend a political rally.
• Advise employees that all workplace speech, whether political or otherwise, should be respectful and tolerant of others’ views.
• Do not press employees to vote for a particular candidate and never use threats of adverse employment action to influence an employee’s vote.
• Communicate with supervisors regularly during campaign and election season to ensure that they understand the importance of creating a respectful, politically-neutral work environment.
• Brace yourself as an employer to address issues relating to the “First Amendment” and claims of “infringement on my Constitutional rights.”
• Be sensitive to potential discrimination, harassment and retaliation issues. While political beliefs at work are not protected in the same manner as, say, religious beliefs, the potential exposure to these types of claims remains prominent.
Published on October 1, 2008 (Updated on June 1, 2012)