As the midterm election season approaches, employers may already be dreading inevitable political disagreements at work and wondering how to prevent them. American politics have become more polarized over time, and strong, contrary viewpoints can lead to divisiveness and possibly even harassment claims.
Employers should be aware, however, that limiting all political speech at work may run afoul of state and federal laws or otherwise could be undesirable and impractical.
The Legality of Banning Politics
Although some employees may believe that they are free to discuss politics at work because of their constitutional free speech rights, the First Amendment applies only to public employers. Therefore, employers who want to limit political conversations may generally do so, as long as they draft appropriate carve-outs to allow for protected speech under the National Labor Relations Act (NLRA) and state laws.
The NLRA prohibits employers from banning employee speech about the terms and conditions of their employment. Protected topics of conversation under the NLRA include paid leave, union activity, equal pay, and minimum wage. As a result, employers should be careful not to broadly ban conversations on any and all politics.
Many states also have laws protecting employee political expression. In California, for example, it is illegal for employers to discharge or to threaten to discharge an employee for political expression. In New York, employers may not discriminate against employees because of political activities that take place outside of work. Other jurisdictions, like the District of Columbia, prohibit discrimination against employees based on their affiliation with any political party. Accordingly, employers should consult with local counsel about which laws may apply before taking any adverse actions against an employee that could be perceived as occurring because of the employee’s political expression.
The Disadvantages of Banning Politics
Some employers wish to ban politics to prevent discord and interruptions to productivity. However, policies banning politics may be difficult to enforce because employers cannot always monitor employee conversations. Additionally, because politics affects so many personal and familial issues, it can be impossible to differentiate which topics are “political.” Policies limiting employee speech could also be taken as overly controlling, which could have a negative effect on employee morale and collaboration.
A better solution may be to craft a clear anti-discrimination and harassment policy and to frequently communicate and remind employees of the employer’s expectations. This will teach employees that while they may disagree, their communications with coworkers must remain respectful at all times. Human resource employees can mediate disputes on an as-needed, case-by-case basis and discipline employees who cannot keep their political opinions from crossing the line into discrimination, harassment, or bullying. Training on the employer’s policies and on diversity, equity, and inclusion will also help to encourage open conversations about varying viewpoints and to avoid conflicts before they occur.
Political debates at work can be uncomfortable. Employers can get ahead of the problem either by crafting a policy limiting political speech with appropriate carve-outs for applicable laws, or preferably by training employees on a clear anti-discrimination policy that will set expectations for respectful disagreement.
If your organization has questions about how to handle political disputes between employees and the applicable laws at issue, please contact the authors of this article or any lawyer in Venable’s Labor and Employment Group.