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There is an old saying among attorneys that you should never discuss politics or religion with clients.  While the same may be said about other situations, it is inevitable that politics will in some cases be discussed at home, and in the work place.  With the intensity and divisiveness of certain current political positions, it is inevitable that some of these discussions can lead to arguments, sometimes heated.  Employers are faced with how to deal with or avoid these confrontations at work, and legal issues related thereto. 

Let's start with issues pertaining to dress, buttons, postings or distribution of political materials, including slogans like "Black Lives Matter" or "Make America Great Again."  What happens if one employee wears a "Black Lives Matter" shirt, and the next day another employee comes in with a "White Lives Matter" shirt?  What happens if the issue pertains to a current legislative or judicial issue, such as minimum wage, immigration or the like?  Consider also the attitudes of workers towards what they consider to be their personal rights.

An employer would seem to have an interest in avoiding confrontations or disputes at work, and in setting forth general rules and policies regarding dress and conduct, insuring that working time is for work.  Such rules and policies should start with the proposition that the employer must have a legitimate work rule or policy in place, and it must be equally applied and enforced.  Thus, an employer could have a dress code for indecent, suggestive or distracting attire or accessories, and even such facially neutral rules might require some flexibility in application due to legally-allowed items.  For example, there is a long history of National Labor Relations Board (NLRB) rulings allowing employees to wear union buttons at work, at least in most circumstances.  Similarly, there is a long history of NLRB rulings dealing with employees' attempt to distribute union-related materials at work and post such materials on company property.  The NLRB generally allows employers to prohibit solicitation during working time, and distribution of materials during working time or in work areas at any time.  The NLRB has supported employer rules prohibiting the posting of materials at work, as long as such rules or policies are enforced in a non-discriminatory manner. 

There are no federal laws that relate to the promotion of the Democratic Party or the Republican Party at work.  Further, being a Republican or Democrat or supporting or not supporting a particular candidate is generally not considered a protected characteristic.  Nevertheless, some policies might be considered as having an adverse impact on a certain protected class of workers and/or be more directly related to a particular issue that might involve protected concerted activity, such as minimum wage or immigration issues.  An example of these issues has arisen when some employees stay away from work to support "immigrant rights" days, or something like that.  The NLRB often considers such activity protected concerted activity and cannot be subject to discipline.  Further, a number of states have laws prohibiting discrimination against employees for engaging in lawful off-duty activities, and this principle would also apply to engaging in certain political activities.

A particularly interesting issue arose at Google, where a white employee said he was fired for expressing his conservative views concerning the advancement of females and minorities, but Google argued he was fired for voicing sexist views about female colleagues and disrupting the work environment.  The employee and others brought labor and class action complaints against Google over these issues and the issues raised are yet to be resolved.

While the issues are complicated, a starting point is for employers to have facially neutral rules or policies concerning dress, solicitation and distribution of materials, the posting of materials on company policy, and threatening or intimidating conduct.  These types of rules at least give the employer a starting point to regulate disruptive conduct at work, provided the policies are facially neutral and consistently enforced.  Even under such facially neutral policies, there may often be the need for competent legal advice for issues that might be related to protected, concerted activity.  The need for advice is particularly important when a political confrontation at work is about a topic that concerns a protected category.

Wimberly, Lawson, Steckel, Schneider & Stine

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