A voting precinct in the District of Columbia. Credit: Mike Scarcella / NLJ

The divisive run-up to the midterm elections has proven ripe for workplace discussions about politics, exposing employers to anti-discrimination and hostile workplace issues and forcing them to grapple with the scope of protections for speech and social media use.

Private employers largely have the power to restrict political-related activity during work time, but keeping politics completely out of the office—for instance, group discussions on email or at the water cooler—may prove difficult to enforce and monitor. Companies must balance among speech protections, minimizing hostile work environments and running afoul of certain state provisions, management lawyers say.

“You might overhear at the water cooler workers loudly debating about candidates. You want them to get back to work, but is it a good idea to restrict these conversations?” said Meryl Gutterman, counsel with ADP Small Business Services, during a recent webinar that spotlighted managing political talk in the workplace. “It may not be in your best interest to stifle. It also may be unlawful to tell certain employees that certain conversations can't be held in the workplace.”

This election season is particularly ripe for overlap between political issues and discrimination, said David Barron, a Cozen O'Connor member in Houston.

“From the #MeToo movement and the [Brett] Kavanaugh confirmation hearings to immigration topics and racial issues, there is a fear that someone could easily be offended during these workplace discussions,” Barron said in an interview. “A lot of lawyers try to manage that in the workplace.”

Hard-line policies restricting political discussions are rare, but during election season, many employers issue reminders to be civil and reinforce harassment policies and encourage workers to steer from controversial topics.

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Speech outside the workplace and on company electronic devices further muddy the waters for employers, but views unrelated to workplace conditions don't carry wide protections.

In a recent case, a marketing specialist in Virginia last year was fired after she flipped off President Donald Trump's motorcade during a weekend bike ride. A photo of the worker's middle-finger gesture went viral, and the company said the employee violated social media policies. The worker's lawsuit challenging her punishment failed.

A CareerBuilder study from 2012 found that a third of workers said they discuss politics at work, and of that number 23 percent said the conversation turned heated. Employment attorneys say companies should create policies to address these inevitable discussions. Human relations experts and attorneys offered insight into other trouble spots for employers looking to manage political talk and activity in the office.

Beware of discrimination and harassment.

Conversations quickly can become charged during a political discussion. Heated exchanges for or against Trump's immigration policies might alienate some workers and lead them to file complaints if they feel they are being singled out. Employers must be careful to keep the conversations from violating discrimination rules, management-side attorneys say.

“Employers should expect everyone to maintain civility in the workplace—if someone doesn't want to talk about politics, they shouldn't be pressured or forced to hear it,” said Edward Harold, regional managing partner for Fisher & Phillips in New Orleans.

Kristin LaRosa, senior counsel at ADP Small Business Services, said companies should draft nondiscrimination policies that communicate and define what is acceptable and what is not.

Chatter by coworkers or management that could be deemed offensive to a protected class—based on gender, national origin, religion or race—is problematic and could create a hostile work environment. Gutterman said employers should be mindful about whether certain employees think they are being bullied.

Cozen O'Connor's Barron said he's seen “heated discussions” on social media in recent months, following the Kavanaugh hearings in which a high school classmate accused the now Supreme Court justice of sexual assault. “There are personal issues for people,” he said. “It's easy for people to have strong opinions and then offend someone who is a victim of something in the past.” Kavanaugh denied the allegations.

Political speech is sometimes tied to protections concerning workplace conditions.

There are no broad federal protections for political discussions in the office, said Harold of Fisher Phillips. Still, a company might not have incentive—or even the resources—to stop employees from gabbing about politics and elections. “I don't know if employers want to involve themselves in the coffee-room conversation,” Harold said.

State and local laws pose some management considerations for the scope of what conversations and activity might be allowed. Some states have specific laws that say employers cannot prevent employees from participating in political activity.

New Jersey has a law that says employers can't threaten or punish employees based on their voting activities. In Washington state, employers can't discriminate against employees for supporting—or not supporting—any candidate, ballot proposition, political party or political committee.

The National Labor Relations Act also provides some protections for speech that is connected to workplace conditions. An employee who speaks out in favor of a candidate who supports minimum wage, for instance, or paid leave laws, might find some protections if an employer tried to reprimand the worker or otherwise try to curtail such speech.

LaRosa said an employee's rights could also be triggered if he or she attends a rally intended to improve workplace conditions. It can be tricky to police these actions. “Imposing limitations might not always be practical,” LaRosa said.

Social media use can blur lines.

Social media accounts and the use of a company's electronic communication systems are the new frontiers of speech issues. An employee who posts political commentary on Facebook that is tied to workplace conditions might find some protections.

Then there is the issue over whether the employee is posting on work hours. “You have the right to control employees during work time,” Gutterman said.

The Trump-era National Labor Relations Board is currently looking at how much nonwork communication on company email can be protected. The Obama-era board permitted workers to use corporate email systems for union-related activity when they were not on the clock.

Gutterman said communications policies can help employers control how workers are utilizing equipment during work time.

Barron said that social media is a “gray area of the law,” but the NLRA does not extend to all personal opinions and political beliefs. “Social media can still hurt you in the workplace if it's offensive or an embarrassment to the employer,” he said.

 

 

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