Politics In The Workplace: Avoiding The Potential Landmines

by Edward Easterly, Esq.

“Let’s have a calm, rational discussion about why your political beliefs are entirely incorrect and why my beliefs are clearly correct.”  A statement said recently by no one, ever.  What is more likely to occur in today’s world is one party yelling “Feel the Bern” while the other party screams “Trump 2020” or “bring back Ross Perot!”  While the political arguments occurring are disruptive when they occur on a bus, the grocery store, or at a family holiday, such discourse has the potential to significantly and detrimentally impact a workplace.

Employers, however, struggle with what they can do to limit the possible issues which may result from employees discussing politics in the workplace.  Many employers, and more importantly employees, believe that they are free to discuss their political beliefs while at work, regardless of the problems it may cause because they have a “First Amendment Right” to engage in this behavior.  While employers may permit employees to discuss politics in the workplace, employees of private employers have no “First Amendment Right” to engage in such discussions while in the workplace.  Additionally, employees may be disciplined by employers for statements made outside of the workplace if they have an impact on the workplace.

In this regard, the First Amendment provides protection from intrusion by the federal government into an individual’s free speech.  The keywords in the foregoing are “intrusion by the federal government.”  Someone working for Target, the local manufacturing company, or a private accounting firm is generally not being employed by the “federal government.”  Accordingly, if Bob in sales who works for ABC, Corp. decides he wants to put “Trump 2020” posters all over his workspace and berate his co-workers about their political beliefs, ABC, Corp. can inform Bob that he can do so at another place of employment.

The same logic extends to postings that employees place on social media websites.  Courts have routinely stated that an employer is free to have clients and customers who are both Republicans and Democrats.  As such, if an employee posts a disparaging comment about a Democrat or a Republican, an employer can inform the employee that it needs to remove the posting or be subject to discipline.  Depending on the nature of the comment or posting, an employer may be able to terminate an employee if the language is severe, profane, obscene, is of a harassing nature, or if the employee’s conduct constitutes insubordination.

Based upon the previous, employers should develop internal policies and procedures which dictate how they are going to handle political discussions in the workplace.  An internal policy should indicate that the employer encourages its employees to take an interest in politics, but specifically state that such activities should not occur in the workplace.  A well-crafted policy should also provide examples of what is and is not appropriate behavior in the workplace. It should cite to the employer’s other impacted policies and procedures (e.g., an anti-harassment and discrimination policy and the employer’s disciplinary policy).  The policy should further state that any violation will result in disciplinary action, up to and including termination of employment.  Finally, the policy should include a disclaimer that it does not prevent or prohibit employees from engaging in activities which are protected by law, specifically the National Labor Relations Act (which protects employees who are engaging in discussions about the terms and conditions of employment, such as wages or benefits, not whether the government should pay for everyone’s college or build a wall).

Managers and supervisors must be provided with training on the employer’s political policies and how to handle issues when they arise.  By way of example, if a supervisor overhears a political discussion, the supervisor should understand how to intervene and prevent the discussion from becoming a problem.  Managers and supervisors should also be specially trained on how to consistently apply the policies of the employer.  If a manager or supervisor does not apply a policy consistently, it may result in a bigger headache for an employer in the nature of a claim of discrimination.

If an employer does not adopt a specific political activity policy and train managers and supervisors on the policy, any issues of “political discussions” in the workplace will be handled on a case-by-case basis, if at all, which is more likely to lead to potential liability for an employer.  Regardless of whether a company’s employees “Feel the Burn,” believe in “No Malarkey” Joe Biden, or want “Trump 2020”, they will all agree that an employer who discriminatorily applies its policies will not receive their vote.

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