In a political world, what topics can be banned in the office?
By Larry Morgan, MAIR, SPHR, SHRM-SCP, GPHR
February 19, 2020
Maintaining a productive and cooperative workplace with employees of diverse backgrounds, religious and political beliefs can be tricky. Many employers provide employees with a “Code of Conduct” statement, which provides some guidance on respectful workplace conduct, handling disagreements with co-workers, discussing social media posting, etc.
Given the current highly charged political environment, employers and employees alike may also be wondering: What, if any, political and other conversations in the workplace is acceptable or appropriate? And can it be banned in all locations including lunch and break areas when employees are “off duty?”
The case for freedoms
On one hand, many of us are familiar with the First Amendment, which says: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
On the other hand, we are all concerned with workplace harassment issues dealing with potential age, gender or religion harassment claims.
While political discussions are not directly covered under Title VII of the Civil Rights Act of 1964, there are some rules governing political discussions in the workplace. Many of the current political hot topics relate to race, religion, gender and other characteristics protected by laws like Title VII.
For example, workplace conversations about immigration or affirmative action programs may quickly tee up broader conversations about race and national origin. Transgender protections and the right to marry also may incite heightened emotion.
Federal civil rights laws also may come into play when political issues are discussed at work. Conversations designed to or even incidentally upsetting an individual based on a perception that their co-workers are biased against the employees own protected characteristic or the characteristic of a partner, spouse or child or another coworker may give rise to discrimination or harassment complaints.
Even when employee conversations about these topics are not intended to harass or otherwise upset others, employers should take seriously employee concerns about conversations of this nature and remind employees that the company does not tolerate harassment or discrimination in the workplace. This can also arise during break time even if not officially “working time.” Employers have an obligation to provide a “harassment-free” environment for all employees at all locations. Potentially, there could be a “spillover” effect from off-duty conversations or activities.
Distinctions between government and private employers
While First Amendment rights address the ability to curtail citizen speech and association, private employers generally regulated by the First Amendment. In fact, there currently is no federal law that broadly protects all political speech in the workplace of private employers.
However, employers should be aware of the federal National Labor Relations Act (NLRA), which covers both union and non-union employees. The NLRA Section 7 protects employees’ rights to discuss areas of mutual concern and to act collectively with and for the benefit of their co-workers for purposes of mutual aid and protection.
Conversations between employees, in person and online, addressing items such as compensation, benefits, working conditions, supervisory treatment, etc., are considered as protected activity. Conversations about these issues can be political in nature and are also likely protected by the NLRA. Even overt statements about a specific political candidate can fall under NLRA protection if the purpose behind the speech is to promote better working conditions among co-workers. However, conversations of a harassing nature involving protected classes such as race, religion, sexual orientation, age or disability should be quickly addressed.
Political candidates
Employees might have conversations in the office along the lines of, “I support candidate X because he will support an increase in the minimum wage.” Some speech and even the use of profanity has been found to be protected speech under the NLRA, so be sure to carefully look through all the issues involved in employee speech on political topics before taking actions in response. Because the issue is not black and white, employers may wish to contact an employment attorney or the MNCPA HR Hotline for further advice.
Political buttons, posters
Employees wearing political buttons or placing campaign posters in their work areas could be universally prohibited. However, union campaign and support buttons cannot be prohibited. This could extend to union support of certain candidates.
Voter persuasion
Employers must also be careful not to instruct employees on how to vote. Several states have enacted laws protecting political action, and expressly prohibit employers from taking action against employees for things like voting, for voting in a particular manner or for refusing to disclose how they voted.
These state laws vary dramatically, and some states have no such protections. Minnesota provides much more protection for employees than federal law. Minnesota law makes it a crime to try to prevent, restrain or influence an employee’s political activity by threatening discharge or otherwise trying to prevent the conduct. Minnesota law also provides protection for political activity, political party affiliation, campaign contributions and exercising the right to vote.
Code of conduct
While the landscape can be tricky, employers are encouraged to establish a solid Code of Conduct document distributed to employees via hiring document or handbook and remind employees that harassment issues go beyond sexual issues and include respectful workplace conversations in their annual training. Additional training should be given to supervisors on acceptable conduct.
Larry Morgan runs the MNCPA HR Hotline and is president of Orion HR Group, LLC. He is a regular contributor to Footnote. You may reach him at larry.morgan@orionhr.com.
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