by Jason D. Guinasso, Managing Partner, Hutchison & Steffen Attorneys
Political discussions and debate are common at work among managers and employees. Indeed, in today’s polarizing political climate, it seems as if everyone has a political opinion and they are not shy about sharing it.
Surprisingly, few companies have a written policy on political discussions and other activities. While employers should adopt and implement a non-solicitation policy that prohibits all forms of solicitation—including political campaigning—during working time, generally, employers should not adopt a blanket policy that prohibits employees from discussing politics at work because the Nation Labor Relations Board (NLRB) classifies such speech as a “protected concerted activity.”
The National Labor Relations Act (“NLRA”) applies to most private workplaces, including non-unionized workplaces. Under Section 7 of the NLRA, non-supervisory employees have the right to engage in concerted activities for “mutual aid or protection.”
Employers who are seeking to limit political chatter in the workplace can adopt a written policy outlining the dos and don’ts of political debates around the watercooler. The policy should explain that employees pursuing their own interests shall not use the company name, trademarks, trade dress, logos, reputation, phone number, stationery or other resources except to the extent required or permitted by his or her job responsibilities. Specifically, employees may not use company property (including, but not limited to, telephones, cell phones, computers, laptops, Internet access, websites, e-mail, copiers, printers, scanners and facsimiles) to endorse, support, or campaign to register voters, “get out the vote,” or for a candidate or a cause.
The policy should also explain that employees’ political activities must not involve the company and must not interfere with the normal performance of their duties or the duties of other employees. The company may require employees to remove any political material from their work space, clothing or property on the company’s premises that disrupts the workplace. In the absence of the express written permission from the company, employees should be advised that they are prohibited from speaking on behalf of the company or imply that he or she speaks for the majority of company employees.
Finally, the policy should include a warning that, if an employee engages in behavior that reflects, or has the potential to reflect, unfavorably on the company or shows a lack of dependability or good judgment, the company may take any corrective action that it deems appropriate.
Political dialogue in the workplace also creates potential legal liability for employers when conversations about political issues or candidates involve race, immigration status, gender, sexual orientation or religion. Therefore, in addition to having a policy that addresses political conversations in the workplace, it is important for employers to make sure their harassment policies and harassment complaint system are posted and that employees are trained in the process.
Employers should actively and consistently enforce a comprehensive anti-harassment and anti-discrimination policy and remind employees of the company’s non-retaliation policy associated with lodging legitimate complaints under the policy.
In addition to the foregoing legal considerations, it is important for companies to establish a culture of civility and respect for the opinions and views of others. Today’s workplace is extremely diverse with a wide range of perspectives, opinions, and political viewpoints. While one employee’s political affiliation may not mirror those of the person in the next cubicle, it is important for companies to establish the expectation that employees will be respectful of each other’s opinions to maintain productive working relationships.
In short, the application of the “Golden Rule” in the workplace is the most effective first line of defense against the legal liabilities that can arise from political conversations in the workplace.