Politics in the Workplace in This Election Season

Employers are being increasingly concerned about how the polarization in the political environment affects their workplaces.  While in the past, many employers chose, with employee support, to take public stands on political/social issues, but today the trend is to stay away from such issues except those directly affecting the operation of the business.  Employees themselves often take part in vigorous discussions of current political and social issues, including gender and racial equity, reproductive rights, and gun control.  Vigorous discussion of these issues can lead in some circumstances to disagreements among employees and divisive controversy. 

In general, political/social advocacy by employees is not normally protected by federal workplace and discrimination laws.  However, sometimes the political/social issues are connected to current workplace issues potentially making the "political" speech protected by Section 7 of the National Labor Relations Act, which protects "concerted activity for mutual aid or protection" in the workplace.  A current and highly relevant example is that of the issue of the wearing of "Black Lives Matter" buttons or similar items or discussions in the workplace.  The National Labor Relations Board (NLRB) has ruled that the wearing of such items is protected concerted activity where related to recent events in the workplace, but where not so related, it is considered unprotected political/social speech.  See SFR, Inc., NLRB Case 10-CA-268413 (8/21/24).  

Of course, employers have an interest in respecting individual political freedoms, but employers also have a strong interest in providing a harmonious work environment.  There is some difficulty in drawing the line.  

In general, therefore, an employer can regulate political/social speech in the workplace if there are legitimate business reasons for doing so.   If the employer's policies or standards are properly drafted, common work rules can be a valid reason for discipline of violations, even those related to political/social issues.  However, another issue is created, in that under NLRB rules, such rules must be narrowly and legally drawn so as not to be deemed overbroad and thus "chilling" legitimate employee concerted activities to improve the workplace.  It should also be noted that a few states have laws that apply to certain types of political activity.  

The general rule is that an employer should have properly prepared and legally reviewed policies that can be applied to situations where the political advocacy crosses the line and is disruptive in the workplace. Such rules need not be drafted to apply particularly to political issues, but instead be applied to political discussions just like other speech in the workplace.  Those rules might include, for example, prohibitions against threatening or coercing a fellow employee, or it might refer to other company policies such as those dealing with harassment or workplace violence.  Unfortunately, general terms like "harassment" can get an employer in trouble under the NLRB doctrine, as the NLRB considers just the term "harassment" to be overbroad and thus may "chill" the legally protected right of advocacy of employees on matters affecting the workplace.  Other employer rules that may come into play include prohibiting solicitation during working time, and distribution of literature in working areas of the facility at any time.

This article is part of our October 2024 Newsletter. 

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