Election Year Politics in the Workplace

October 1, 2016

democrat-vs-republican

The question of politics in the workplace has never been more important. This year’s election has been a contentious, emotional one so far. And that’s not going to get any better as we head towards November. Both leading candidates are deeply distrusted and disliked by members of each opposing camp. If recent outbursts, arguments, insults and ‘unfriending’ on social media is any guide, it is very easy for those tensions to spill over and disrupt the workplace.

According to a 2012 Career Builder survey, 36 percent of workers discuss politics at work, and some 23 percent of those surveyed say that politics discussions at work have become heated or they had a fight with a co-worker, manager or someone else higher up in the organization. 

Indeed, the risk of politics in the workplace may amount to more than disruption. A heated exchange about politics in the break room could devolve into an ill-considered remark about an employee’s race, sex or religion. And now you’re talking about a possible lawsuit for discrimination or hostile work environment.

So what’s an employer to do?

Well, a lot of them aren’t doing much. While three out of every four surveyed HR workers say their company discourages political activity in the workplace, only about one in four organizations (24 percent) have a written policy concerning political activity on work premises. Another 8 percent of organizations report they have an unwritten policy, according to the Society for Human Resources Management. 

Politics in the Workplace: Tips and Best Practices

Here are some principles and practices to consider as we buckle in for a wild ride: DECISION 2016!

  1. Employees do not have a 1st Amendment right to freedom of political expression in private workplaces. The First Amendment restricts government officials from restricting speech. Not private employers. Generally, unless you are engaged in union busting, or engaged in unlawful discrimination under the Civil Rights Act, Americans With Disabilities Act, USERRA, or another applicable state or federal anti-discrimination law, you can, as an employer, set limits on political expression, speech, advocacy, solicitation or other activities in the workplace.
  2. Blanket bans on on any and all politics-related discussions in the workplace are likely illegal. The intuitive thing to do would be to prohibit talking politics in the office or factory floor altogether. But that could amount to a violation of federal law. For example, employees have the right to organize – and the act of organizing a labor force or forming a union is a political act. If you are too clumsy with a blanket ban on political discourse in the office, your company could run afoul of union-busting laws. Furthermore, some states have additional protections in place for employees engaged in political speech or activity at work.
  3. Bans on political buttons, T-shirts and other swag at work are generally legal. But you cannot ban these items as they relate to labor unions or unionization efforts. Federal protections for labor organizers and their supporters are broad. If you do have a policy banning certain items, be sure to enforce it evenly, and according to a written policy.
  4. You have more control over dress codes with employees who interact with the the public. It is quite common for employers to impose a ban on political messages and garments in any position that interacts directly with the customer or public.
  5. You have less control during breaks and in break rooms and other ‘non-working’ spaces. You can generally prohibit the distribution of political literature during work time in work areas, so long as it doesn’t involve ‘concerted activity’ in starting, advocating for or running a union. Employers cannot generally enact blanket bans on political discourse or activity in the employee cafeteria or break room, for example.
  6. Know what you can prohibit or restrict. Generally, you can prohibit the following activities:
    1. Solicitation for campaign funds and distribution of campaign materials during working times.
    2. Communications or conduct that disrupt business operations or inhibit productivity.
    3. Violence or extreme behavior in connection with political advocacy or activity.
  7. Craft policy manuals and memos carefully. Whatever restrictions you may want to place on politics in the workplace, be sure to include the appropriate carveouts including concerted labor organization activity and other communications that enjoy protection under state and federal law and the National Labor Relations Board.
  8. Consider discouraging managers from talking politics with subordinates. Even conversations that begin innocently enough can take an unexpected turn – potentially creating a claim for discrimination, harassment or some other violation of employment law.
  9. Enforce any bans evenly. If you enforce bans against advocacy for one candidate, or party, but not another, or if you have a policy but fail to enforce it when a specific manager violates it, you could leave the door open to claims of discrimination or a hostile work environment.
  10. You can communicate management’s voting preferences to employees. It used to be management could only tell managerial and administrative employees who they recommended voting for. However, recent case law has changed the landscape of politics in the workplace. Now company executives can communicate their endorsements and recommend candidates and votes to rank and file workers as well as managers and administrators.

Time off to vote rules

While there is no federal law that forces employers to give employees time off to vote, at least 34 states currently have such laws in effect. Required leave – typically runs between one and two hours, unless the employee has sufficient time before or after work to make it to the polls. Some states, including Alaska, Arizona, California, Colorado, Georgia, Hawaii, Illinois, Iowa, Maryland, Minnesota, Missouri, Nebraska, Nevada, New Mexico, New York, Ohio, Oklahoma, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wyoming,  even require to pay employees for their time spent voting.

See this page for details.