Tis the season for political debates. If it hasn’t happened to you yet, it
soon will. You’ll go into the break room at work and a group of people
will be arguing in increasingly heated tones: should it be Hillary or
Bernie? Trump or Cruz? Is Bernie too old? Hillary not “man
enough”? What about Trump’s plan to ban all Muslim travel to the
country? And so on through issues touching on race, religion, sexual
orientation, and a myriad of other protected categories. What’s an
employer to do?
Political speech in the workplace raises a host of issues that must be
dealt with carefully. Here’s what every employer needs to know:
Regulating Political Speech: Employees in private companies do not have
unfettered rights to “free speech” in the workplace under the First Amendment,
which generally applies only to government censorship of speech. An employer
can regulate political speech in the workplace for legitimate business‑related
reasons. This may include, for example, discipline of employees for political
speech that is disruptive of the workplace or interferes with the efficient
conduct of the business.
Managers Should Stay Neutral: That said, it is important that an employer apply
these standards uniformly. Employers may otherwise be faced with claims for
disparate treatment, harassment or retaliation under state and federal anti‑discrimination
laws (which protect religious beliefs, race, gender, age, and other protected
categories). Given these landmines, it is especially important that managers
and supervisors understand that they should not share their political opinions
with subordinates, or worse yet, appear to impose their opinions on them.
Some Accommodation May Be Required: This does not mean that workplaces need to be devoid
of all political expression, and in fact, employers may need to accommodate
individuals whose religious practices sometimes intersect with politics. For
example, a pro‑life individual who bases his political support for a certain
candidate on his religious beliefs may be allowed to display a religious symbol
on his desk, but his advocacy for that candidate in the workplace may be
restricted if it offends his co‑workers, especially after he has been informed
that it is unwelcome.
Speech & Affiliation That Is Protected: Care needs to be taken in two additional areas.
First, under the National Labor Relations Act, both union and non‑union
employees who speak out about employment issues may be protected.
The NLRB has
specifically stated that non‑disruptive political advocacy for or against a
specific issue related to a specific employment concern occurring during non‑work
time and in non‑work areas (e.g. protests regarding minimum wage issues) is
generally protected, although such advocacy can be subject to lawful and
neutrally‑applied restrictions during on‑duty time. In addition, some state
laws may govern political activity.
For example, the California Labor Code
specifically provides that an employer cannot adopt or enforce any policy that
tends to control or direct employees’ political activities or affiliations, and
cannot coerce or influence employees to follow or refrain from following any
particular political activity by threatening loss of employment.
Time off to Vote: Last but not least, when voting day finally arrives, many states protect
employees’ right to take time off from work to vote. Again using California as
an example, employees there must be permitted to take two hours of paid leave
at the start or end of a shift if the employee does not have sufficient time outside
of working hours to vote.
The best course of action for navigating these waters is to create a
culture in your workplace that is respectful and tolerant of others’ views, and
train your managers on even‑handed application of policies and the importance
of non‑retaliation for any employee complaints. Then take a deep breath, and
wait for the next election cycle to commence!
No comments:
Post a Comment