As the election approaches, employees are taking an increasing interest in political issues. Corporate America traditionally has avoided speaking out on political issues, but now it is becoming more common to do so. Indeed, some surveys indicate that a majority of employees expect and want their employers to speak out on social and political issues.
However, there are two sides to every story and every political issue, and thus in taking controversial political and social positions, employers risk offending at least some segment of their workforce and/or customer community. It should be noted that surveys suggest that millennials more than previous generations value working for a company with a noble mission, and want their employers to make a positive impact on society. Walk-outs have even occurred at large employers such as Amazon and Google over politically-related issues. In some cases, employee activists have been fired, causing Amazon CEO Jeff Bezos to state at his company's annual meeting in May, "We support every employee's right to criticize their employer's working conditions," "but that doesn't mean that they're allowed to not follow internal policies."
Such situations create genuine employer concern as to what internal policies can be adopted and applied on a non-discriminatory basis to lessen conflict. Several ideas include carefully worded equal employment statements against harassment and hostile environment actions, and appropriate dress codes. But the situation can be quite complicated. Consider that one major employer allegedly banned Make America Great Again (MAGA) attire, but Black Lives Matter (BLM) attire was acceptable. The debate is continuing whether BLM and MAGA are political and racial, and whether they are appropriate in the work setting.
Employers must thus avoid items being offensive to some, but at the same time contend with legally protected conduct. Employers are obviously concerned about minimizing conflict in the workplace and keeping everyone focused on work rather than contested personal views.
In general, one's political views or activities are not legally protected in the workplace, and thus they are not addressed under the regular discrimination laws. In general, therefore, employers can normally limit political rhetoric in the workplace, but complications can arise. For example, an unfair labor practice charge is currently pending against Kroger, for banning BLM buttons in some of its supermarket chains. The unfair labor practice charge alleges the employer has "interfered with the concerted activities of UFCW Local 21-represented employees by ordering them to remove the buttons the union furnished them to support racial justice and equality in the workplace." The charge asserts that the two Kroger supermarket chains maintain "a vague and overly broad dress code policy that chills an employee exercise" of union rights.
The answers to such issues are not easy. In general, employers may have a neutral dress code such as creating a "no logos" policy of banning clothing with any writing. An effort through a neutral dress code, even if perceived as somewhat tough, mitigates the potential disruption of an employee trying to make a political statement on clothing. Obviously, employers should act with competent counsel and act cautiously, using progressive discipline only if necessary. The employer must be consistent with any rules, witness the debate over Black Lives Matter, White Lives Matter, Blue Lives Matter, or All Lives Matter. An employer can also remind employees that everyone has and is entitled to an opinion, but the focus in the workplace is to get the job done, and to treat everyone equally under the law.
All of this granular analysis may result in attempts to ban all political speech in the workplace for fear of violating the law and being drawn into litigation. There are many fine lines of distinction being drawn between "right" and "wrong." For instances, let's say an employer bans all buttons or masks with sayings or insignias (e.g., Black Lives Matter, All Lives Matter, MAGA (Make American Great Again), Gun Control Now). How will that affect the workforce and relations among various employee groups? Does this result in a lose/lose result in trying to have a more tolerant and collegial workplace? Without a lot of fine tuning and thoughtful execution, little may be accomplished and worthwhile discussion may not be achievable.
This is part of our November 2020 Newsletter.
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