Media Center

August 15, 2024
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With a presidential election just around the corner, employers can expect to see an uptick in political discussions in the workplace, if they haven’t already. The days when coworkers typically refrained from discussing politics and religion have passed. However, what is permitted and required of employers with respect to politics in the workplace these days can be a minefield.

Employee Political Discourse
As an initial matter, in most cases, federal law does not protect employees’ political speech or views from the actions of private employers. The First Amendment to the United States Constitution only protects speech from government action. While public employers need to be mindful of the First Amendment, it does not have any impact on private employers and their relationships with their employees.

However, numerous states and localities prohibit discrimination based on political views, speech, and affiliation. Employers should familiarize themselves with any applicable laws that may exist within any jurisdiction where their employees are located. This may be increasingly challenging given the popularity of remote work. Additionally, government contractors may be subject to additional restrictions on taking action against employees for political speech or views.

Under the National Labor Relations Act (“NLRA”), employers are prohibited from taking action against employees for engaging in protected concerted activity, which includes communications about wages, hours, and terms or conditions of employment. Depending on the content and context of an employee’s political discourse, the National Labor Relations Board could construe political discourse as protected concerted activity. For example, labor unions and paid family leave are issues that have been discussed by the presidential campaigns during this cycle. If an employee expressed support for a candidate based on the candidate’s views on these issues, responsive action by the employer could implicate a potential violation of the NLRA.

As a side note, it has long been a best practice for employers to have clear, NLRA-compliant policies in place outlining the framework for permissible and impermissible solicitation and distribution by employees in the workplace.

Employment action in response to political discourse involving a trait protected by federal, state, or local anti-discrimination laws such as race, sex, disability, national origin, and religion, could be construed as illegal discrimination. Administrative agencies or courts could view the political discourse as serving as a proxy for the protected trait, which would bring the situation within the scope of anti-discrimination laws.

Taking action against employees for political speech on social media invites more complications. Many states and localities have social media privacy laws which restrict employers’ access to their employees’ social media accounts, and therefore limit the action that employers can take with respect to the employees’ posts. Further, employees’ social media activity can still implicate the anti-discrimination and protected concerted activity issues addressed above. Employers should have detailed social media policies in place, especially if they may take action based on an employee’s social media posts.

Additionally, employers should consider the impact that banning political discourse might have on employee morale and workplace culture. On the one hand, political discourse can be distracting and create division. On the other hand, a complete ban on political expression could result in resentment from employees, particular since individuals often feel a strong personal connection to political issues. Further, some political issues may be directly or indirectly relevant to the employer’s business or to the work performed by the employee, which makes it more difficult to both justify and enforce a complete ban.

Employer Political Discourse

Employers are generally not restricted from expressing their political opinions in the workplace. However, before engaging in political speech, employers and supervisors should consider the unintended effects that their words may have on employees. Depending on the content and effect of an employer’s or supervisor’s political speech, the employer or supervisor runs the risk of violating the NLRA’s protection against concerted activity as well as federal and state laws which prohibit voter intimidation and can carry significant criminal penalties.

Recommendations
Employers should clearly communicate their expectations to employees regarding workplace conduct generally, and should uniformly enforce their carefully drafted policies. Now would be a good time to issue reminders regarding professionalism and harassment policy requirements.  Employers should also consider discouraging supervisors from having political discussions with subordinates to reduce the risk of discrimination, NLRA, and voter intimidation claims.

Ultimately, before engaging in political speech or taking action based on the political speech or views of an employee, employers should consult legal counsel to avoid any unexpected pitfalls. If you have questions about how to handle a situation involving political discourse in your workplace, please contact a member of the McNees Labor & Employment Group.