There are definitely ways to minimize lawsuits and prevent employee conflict involving political expression at work. Problems often result when employees lack direction and are confused about what they can and cannot say and do. An employer’s clear, consistent policy on political activity will help ensure that partisan politics don’t become workplace wars.
Employer restrictions on political activity
Employers have wide discretion to limit employee political expression. Limits on political activity in the workplace can be enforced across the board, or be narrowly tailored to specific company needs. Employees are wrong to assume that the First Amendment entitles them to express their political views whenever and wherever they wish. In fact, workers at private-sector companies have no constitutional right to free speech, and can be terminated for expressing political beliefs as long as their dismissal does not violate some other federal or state law. A few states, like California, have laws specifically making it illegal to discriminate on the basis of an employee’s political activity or affiliation.
Employers thus have wide latitude in the workplace policies they can implement. For example, to minimize political disruption at work, an employer can:
Prohibit political statements made to customers or the general public while on company time.
Enforce dress codes or other limits on employees wearing pro-candidate buttons, pins or campaign paraphernalia when (in the employer’s view) such expressions may negatively affect its business.
Restrict access to bulletin boards or e-mail systems for political purposes.
Prohibit political fundraising or informational meetings within the workplace, especially as part of "no solicitation/no distribution" rules which uniformly limit or prohibit seeking support for and distributing literature about any type of non-work activity.
Discipline employees for leaving work to attend a rally or other political event, particularly if that causes employees to be absent during working hours (for example, coming back late from a political event even if they can leave the premises for lunch).
Off hours are off limits
Regulating political conduct outside the workplace is a more difficult subject. What if the boss finds out an employee is volunteering for a radical politician on the weekends, or is prominent in pictures of a controversial political rally? When it comes to employees’ off-hours conduct, the law varies widely state to state. Many courts uphold restrictions only on conduct that is unlawful or demonstrably harmful to the employer’s legitimate interests. This rarely includes active political involvement. In fact, a few states (such as Colorado and North Dakota) specifically prohibit discrimination or discipline for lawful activities outside of work, including political activities.
Many unions and their members are very politically active, so union contracts often prohibit discrimination or sanctions against unionized workers for their political activity. In fact, unionized employees generally (especially those whose collective bargaining agreements have a privacy clause) 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. Public-sector employees have wide latitude to speak on issues of public concern and engage in political activities, because the First Amendment applies to the government—including the government as employer.
The risk of a hostile-environment or discrimination claim
Employers have the right and responsibility to ensure that work environments are safe, and free of hostility aimed at employees because of protected classification such as race or gender. That may include protecting employees from being badgered or pressured by overzealous political advocates. Federal and state laws which have been used to prohibit hostile work environments on the basis of sex, race and religion, for example, could be used to prohibit pervasive political activity that is construed as harassment to any person who is a member of a class protected by the anti-discrimination statutes.
For example, this election year is full of contentious issues that engender strong opinions on race, religion and sex. In many cases—like gay marriage, immigration, the wars in Iraq and Afghanistan, or the removal of Christian symbols from government monuments—employees may find themselves divided along racial, religious or class lines. Workplace discussions on these issues can easily cross over the line from innocent conversation to perceived harassment. To make matters worse, employees who are not allowed to speak their minds on these issues may cry discrimination as well.
Political discussion should never be allowed to devolve into debates over race, national origin or religion. This campaign season makes it especially difficult for employers because much of the election talk will focus on the chance that the first African-American, female or, until recently, a Mormon could be elected President. Discussing these difficult subjects could easily involve comments that some construe as discriminatory—and that can be taken out of context or later mischaracterized as support for a lawsuit against the company. For example, the last thing you want to hear in a discrimination trial is that a company supervisor openly bragged that "he would never vote for a black man for president."
The eye of the beholder
Often, what constitutes a basis for a complaint is in the eye of the beholder: the individual who feels directly threatened or offended by political discourse. For example, one of the hottest campaign issues this year will likely be immigration reform, which, unfortunately for employers, directly correlates to a person’s national origin—a protected category under federal law. A supervisor who expresses a strong opinion on immigration reform could easily be accused of being racist or biased. Employees seeking a day off to participate in an immigration rally could raise discrimination claims if they are denied privileges afforded to other employees.
Although most employees prefer to avoid political debates at work, every workplace has someone who actively looks for a fight over "free speech." A Hewlett-Packard employee sued after being terminated for refusing to take down Bible verses condemning homosexuality. Other employees have brought legal action for restrictions on after-hours meetings or controversial political cartoons posted at work stations. The employers in these situations faced a Catch-22 situation where they could be sued no matter what action they took. If they did nothing, they were exposed to a harassment lawsuit because they knew about and condoned such actions in the workplace. If they took action against the offending employee, they would be sued for unfair limitations on expression in the workplace.
In these cases, and most others, the risk of allowing offensive workplace expression is far greater than limiting it. Moreover, if a complaint is made, the company has a legal duty to investigate the complaint, and eliminate any conduct that constitutes unlawful harassment. It is better to err on the side of keeping controversial communications out of the workplace.
Strategies to defuse conflict
Generally, management need not police civility, because today’s employees are used to dealing with co-workers who have different backgrounds and beliefs. However, there will be employees who do not exercise the requisite level of discretion. Left alone, they can ignite the workplace and destroy morale and productivity. A simple controversy can mushroom, wasting management time and distracting co-workers from their jobs. The following strategies can help keep any workplace from becoming a political battlefield:
Communicate your company’s policy on political expression clearly and in an easy-to understand fashion. The vast majority of employees will follow the rules, if they are just made aware of them.
Train supervisors and managers on the company’s policy and what steps to take if they hear or observe inappropriate workplace conduct.
Don’t overreact to innocent discussion among employees. Instead, use progressive steps—beginning with a simple reminder or verbal coaching—to enforce company policy.
Respond quickly by investigating any employee complaints of harassment.
Consult legal counsel if a difficult situation arises. This will ensure that any disciplinary action is within the company’s legal rights and does not violate federal law protecting certain categories of speech (like that related to unions or safety) or state laws protecting political speech.
Keeping it friendly
Employees today typically spend more time at work than they do anywhere else in their lives. Talking with co-workers about their family, religion or political beliefs is fast becoming the norm, rather than the exception. Most employees understand that stirring up political divisiveness at work is not in their best personal or career interest. But for those who cannot recognize or control when their conduct crosses the line, clear employer policies can help friendly discussions stay that way—and keep the workplace focus on getting the job done.