This article was first published on HRLaws.com’s Tennessee Employment Law Letter by Butler Snow’s David L. Johnson
Recently, a Pennsylvania YMCA stopped showing cable news shows on the TVs in its gym because they were prompting political squabbles among its members. When filtered into the diverse workplace, passionate opposing political viewpoints can harm productivity and morale and even create liability issues for employers. Sometimes political discussions can morph into something that creates a hostile work environment for a member of a protected class.
Keep in mind that the First Amendment right to “free speech” under the U.S. Constitution doesn’t prevent private-sector employers from restricting employees’ speech. Let’s take a look at what private-sector employers can and should do to regulate political communications.
Can we encourage employees to vote a certain way? If an employee is nonexempt under the Fair Labor Standards Act (FLSA), you may not influence his actions in an election. That restriction includes encouraging employees to vote or register to vote (or discouraging those activities), supporting a particular candidate, and running for political office.
Can we ban political discussions? Yes, with a couple of caveats. First, any ban shouldn’t extend to activities protected under the National Labor Relations Act (NLRA). The NLRA allows nonsupervisory employees to communicate about the terms and conditions of their employment (e.g., talk about their wages and hours). It’s against the law to prohibit employees from discussing political issues if the discussion touches on their terms and conditions of employment.
Second, it could be problematic to attempt to extend a ban on political discussions to off-duty conduct. Any restriction on employees’ off-duty conduct must be narrowly tailored to serve a legitimate business interest. Legitimate business interests could include preserving business relationships that might be disrupted by the employee’s activity. Or, suppose an employee who could be viewed as being affiliated with your organization is expressing extremist political views on social media. You may have grounds to step in and restrict that kind of behavior.
Can we ban the display of political views? Again, the answer is yes, with the same caveats mentioned above. You can ban badges, buttons, political statements on T-shirts, and similar displays of political allegiance or views as long as the statements don’t relate to NLRA-protected activity (e.g., promoting unionization). You shouldn’t ban bumper stickers on employees’ cars and similar displays outside the workplace unless you have a good reason.
Should we implement a formal policy? That’s debatable. Personally, I think businesses should endeavor to create a culture of respect and civility without a formal policy, and a policy should be implemented only as a last resort. My preference would be to have informal discussions with employees to encourage them to exercise good judgment and common sense. For instance, there’s a big difference between respectfully expressing personal beliefs and attacking others’ beliefs. I know, I know—it’s unrealistic to expect that all employees will use good judgment.
It’s often a good idea to have a nonsolicitation policy that extends to political campaigning. The policy should be neutral (i.e., it shouldn’t forbid campaigning only for a certain political party) and limited to work hours. It’s also a good idea to restrict employees from using company property (e.g. computers) to express their political beliefs.
Further, management should be counseled to avoid political discussions with rank-and-file employees. Suppose a manager frequently voices his support for a strict anti-immigration policy. An employee could claim that his statements demonstrate a bias against certain nationalities.
Any formal policy should allow conduct protected under the NLRA. And be very careful about enforcement. For instance, you can regulate discussions about feminism or Black Lives Matter (BLM). On the other hand, if you don’t enforce a restriction on such discussions evenhandedly, you could be accused of discriminating on the basis of sex or race. Further, if an employee’s communications about feminism or BLM could be construed as some type of complaint about workplace conditions, your enforcement of a restriction could be deemed unlawful retaliation under Title VII of the Civil Rights Act of 1964.
Must you accommodate an employee’s religion by allowing her to advocate for certain prolife candidates? Probably not if her activity offends coworkers and hurts morale. When the situation involves gray areas, it’s best to obtain legal counsel before taking action.
David L. Johnson is an attorney in Butler Snow’s Nashville office. He can be reached at email@example.com.