Rene M. Johnson and Prashanth Jayachandran, Labor and Employment Practice Group, Morgan, Lewis & Bockius LLP

During a presidential election season, political discussion and debate are everywhere—including the workplace.  According to a recent survey, 66% of employees discussed politics at work, and 30% of workers experienced coworkers trying to influence their vote in an election.  Workplace political discussions often become heated; 46% of employees have witnessed political arguments in the workplace.

Political dialogue and disagreements not only may affect employee morale and productivity, but may also create potential liability for employers.  Conversations regarding Barack Obama, John McCain, and other candidates often focus on race (“Obama is playing the race card”), sex (John Edwards’ and Bill Clinton’s admissions of extramarital affairs), religion (“Obama is a Muslim” or discussions regarding Mitt Romney’s Mormon beliefs), or age (“McCain is too old to be president”).  In addition, Sarah Palin’s candidacy for vice president has reignited the “family values” debate throughout the country.  Thus, innocuous political discussions at work can easily provide fodder for harassment or discrimination complaints.

To determine if your company is ready for the political campaign season, here are ten questions to consider:

1. Do the First Amendment’s freedom of speech protections allow employees to express their political views in the workplace?

Private sector employees do not have First Amendment rights in the workplace.  Thus, private employees’ freedom of speech in the workplace is either severely restricted or absent of any protection in most states.

Some states, however, provide explicit protection for employee political expression.  For example, Florida, Kentucky, Massachusetts, Washington, and Wisconsin make it illegal to take adverse action against an employee on the basis of his/her political views and/or based upon voting preferences.  California, Colorado, and Louisiana go further and prohibit employers from preventing any employee from engaging or participating in politics, including running for elected office.  Thus, an employer must be aware of applicable state laws in order to understand the protections afforded to employee political expression.

With that said, an employer can generally discipline or discharge an employee for legitimate, business-related reasons, even if the employee engages in political expression at work.  If, for example, an employee’s political expression interferes with his/her work, disrupts his/her coworkers, or infringes upon a business objective, the employer can take action consistent with its written policies and practices.  See, e.g., Wiegand v. Motiva Enterprises, 295 F. Supp. 2d 465 (D.N.J. 2003) (employer lawfully terminated employee for engaging in white supremacist activities).  Employers only run afoul of discrimination laws (including laws protecting political expression) when there is evidence of disparate treatment, uneven application of the employer’s policies, or adverse 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.  Beyond the restricted class, a corporation’s communications to rank-and-file employees regarding the election of political candidates is more restricted 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 Pennsylvania, employers are subject to criminal penalties for intimidating or coercing employees to vote (or not to vote) in an election.

Some courts have recognized an employee’s common law right to be free from employer-sponsored political expression.  In Novosel v. Nationwide Insurance Co.,  the Third Circuit Court of Appeals held that a Pennsylvania employee could state a claim for wrongful discharge based upon his opposition to the employer’s political stance.  The court held that the following factors would determine the viability of the wrongful discharge claim:  (1) whether the plaintiff’s protected speech (i.e., refusal to participate in lobbying efforts) prevented the employer from efficiently carrying out its responsibilities; (2) whether the speech impaired the employee’s ability to carry out his responsibilities; (3) whether the speech interfered with essential and close working relationships; and (4) whether the manner, time, and place in which the speech occurred interfered with business operations.  In Culler v. Blue Ridge Electric Cooperative,  the South Carolina Supreme Court ruled that an employee could state a wrongful discharge claim based upon his assertion that he was terminated because he failed to contribute to his employer’s political action fund.

As a result of these statutory and common law protections, managers and supervisors should not impose, or even share, their political views and opinions with their subordinates.  A manager harmlessly asking an employee, “Who are you voting for—McCain or Obama?” can create an aura of coercion or make an employee feel threatened for expressing political views contrary to those of the manager.  As explained below, debate among employees regarding their political views can be fraught with peril.

3. Can an employer prohibit political campaigning at work

An employee’s focus at work should always be work.  Accordingly, an employer should regulate political campaigning at work through the enforcement of a nonsolicitation 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 rather than perform their job duties during working time.

In the Internet age, the bigger problem lies with political campaigning at work that is not transparent to the employer.  The explosion of political blogs, Facebook, myspace.com, and other social networks 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 enforce policies stating that their computer systems 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.

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, or using the employer’s computer or email systems for political purposes, in order to avoid the appearance that the employer adopts an employee’s political views.

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 sanitize the workplace from politics.  Employers can encourage political participation among employees by inviting political candidates to address their employees or holding voter registration drives.  Each employer must decide the extent of tolerable political expression or activity in the workplace based upon an understanding of its culture, workforce, and business objectives.

5. Can employers restrict employees’ off-duty political activities?

Some states, such as Colorado and New York, prohibit employers from discriminating against employees who engage in political activities during nonworking hours.  Other states generally prohibit discrimination against employees who engage in lawful activities.  In a unionized setting, collective bargaining agreements may provide further protection for bargaining unit employees to engage in political activities outside of work.  Accordingly, in some states, employees can volunteer for political campaigns, write political op-ed pieces, or generally be politically active during their time away from work, even if the employees’ views or conduct might be inconsistent with the employers’ business objectives or political positions.

6. An employee mentions to his boss that the employee’s coworker constantly tells him that Barack Obama should not become president because he is a Muslim.  Another coworker tells colleagues at lunch that McCain is too old to be president.  What action should be taken by the employer?

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 cross the line into a discussion of protected characteristics.  This task is not easy, as evidenced by the constant media focus upon McCain’s age and medical conditions, and Obama’s religion and race.  Employees often discuss the candidates’ race, religion, age, or medical conditions with their bosses, coworkers, and even customers, under the mistaken belief that such discussions are acceptable because they simply repeat what the public hears in the news media.  However, workers in protected categories may feel alienated or isolated if they observe employees criticize a political candidate based upon their own protected characteristics (e.g., a Muslim employee overhearing coworkers state that they will not vote for Obama because he is a Muslim, or an older employee hearing from his manager that McCain may be limited physically and mentally because of his age).  Similarly, the recent media attention surrounding Sarah Palin and her pregnant daughter has reignited the “family values” debate and the role of working mothers in society.  Employees may share their opinions with coworkers regarding Palin’s candidacy without considering that such discussions may offend female employees or employees of a particular religious faith.  The political issues currently debated by Obama and McCain, such as immigration, the Iraq war, gay rights, abortion, and race relations, can also generate inappropriate workplace conversations.

For these reasons, employers should publicize antidiscrimination and antiharassment policies that include mechanisms for employees to lodge their complaints.  Persistent political dialogue and discussion can be perceived 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 offending behavior.  There is no safe harbor for discrimination or harassment complaints based upon an employee’s political views.

7. A devout Christian employee displays a Bible on her desk, and strongly urges coworkers 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 (e.g., abortion and gay rights).  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.  An employer has an obligation under Title VII and other laws 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”) recently 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.  If, however, the same employee sat in the main lobby through which all employees, visitors and clients must enter and displayed the religious object, it would likely constitute a hardship because it would appear to represent the employer’s views.

While the employee probably has a right to display the Bible on her desk in her office, the employer can restrict the employee’s advocacy of pro-life candidates if it offends coworkers.  The EEOC’s guidance—as well as an abundance of caselaw—makes it clear that religious expression directed toward employees by coworkers 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 coworkers to vote for pro-life candidates if other employees complain that the advocacy based upon the employee’s religious beliefs is persistent and unwelcome.

8. An employee misses work without permission to attend a political rally.  Can the employer discipline the employee?

A few years ago, thousands of employees across the country missed work, without permission from their employers, to attend political rallies in opposition to immigration legislation pending before Congress.  The employees’ attendance at the rallies raised the issue of whether their absence from work was protected under federal law.  Specifically, under Section 7 of the NLRA, employees (nonunion and union alike) have the right to engage in concerted activity for the “mutual aid or protection” of other employees.  Recently, in the aftermath of the immigration rallies, the General Counsel for the National Labor Relations Board issued guidance regarding the circumstances in which employees’ political activity is protected under Section 7.

The General Counsel stated that employee political advocacy falls within the “mutual aid or protection” definition if “there is a direct nexus between employment-related concerns and the specific issues that are the subject of the advocacy.”  For example, employees may engage in protected activity if they leave work early to attend a political protest challenging legislation that impacts the hiring of illegal immigrants.  The guidance suggests that the employees’ attendance at the immigration rally is protected political advocacy because “protesting employees were concerned by predictions that employers would decline to hire immigrant employees altogether rather than risk violating the proposed law.”  Conversely, an employee’s attendance at a political candidate’s rally “without reference to any particular employment-related issues” is not protected under Section 7.

However, the General Counsel further stated that while attendance at a political rally may constitute protected activity, “leaving or stopping work to engage in political advocacy for or against a specific issue . . . may also be subject to restrictions imposed by lawful and neutrally applied work rules.”  The General Counsel rejected the notion that the employees’ attendance at the rally was a protected strike under the NLRA.  Therefore, an employer can discipline an employee for missing work to attend a political rally pursuant to the evenhanded application of an employer policy or work rule.

9. Does an employer have to provide employees time off to vote?

More than half of the 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, Iowa, and Tennessee, provide three hours of paid leave for employees to vote in an election.  Thus, employers must be aware of and abide by applicable voting laws.

10. What steps should be taken by an employer to monitor and regulate political discussion in the workplace? 

• Implement a nonsolicitation policy that prohibits all forms of solicitation—including political campaigning—during working time.
• Implement an Internet and email policy that explicitly mentions that the employer’s computer system is for business-related use only.  The policy should state that the employer retains the right to monitor the employees’ use of the computer system.
  
• Actively and consistently enforce a comprehensive antiharassment and antidiscrimination policy that provides a clear mechanism for complaints and investigation.
• Remind managers and supervisors to avoid political conversations or discussions with their subordinates.
  
• Remind managers to report employee complaints, even if the complained-of conduct has political overtones.
• Remind managers to evenhandedly enforce dress code and nonsolicitation policies.  Enforcement cannot be influenced by an employee’s political views or activities.
• Review state laws regarding voting leaves.
• Seek legal counsel before disciplining any employee for his/her political activities, including missing work to attend a political rally.