New England Biz Law Update
Heated political campaign ads dominate the airways. And when something can become that divided, it inevitably runs the risk of bleeding into the workplace. This is true regardless of whether you are an employee, a manager, or a senior leader. You should anticipate election-related workplace issues regardless of whether your workplace remains virtual, never closed, or falls somewhere in between.
So, how do employees and employers find common ground? Both managers and employees need to be reminded of workplace rules, the necessity of respect in the workplace, and the importance of working productively. Workplace rules apply when an employee is working or interacting with co-workers or clients regardless of where and how the work is being performed. Here is a look at some common misconceptions and a recommendation for addressing a hypothetical situation many employers may face.
Number one employee misconception: ‘I have free speech rights!’
Many employees believe they have “free speech rights” to speak their minds — including at work. They are wrong. The First Amendment protects citizens against government action limiting speech. For private employees, very little speech is protected. That said, government employees have broader (but not unlimited) speech rights.
However, the First Amendment has no application to private employers. A “private employer” is any nongovernmental one — including public, private, and not-for-profit ones. Employees of such employers do not have a “constitutional” right to speak their minds about politics in the workplace. As a result, nongovernmental employers may generally regulate political expression as they would other forms of disruptive workplace communication. Business owners, leaders, and managers may address political discussion during work time, even in the absence of potentially offensive content.
Number one employer misconception: ‘This is a nonunion workplace!’
Section 7 of the National Labor Relations Act applies to all private-sector employees, regardless of whether they are part of a union. It grants employees the right to work together for collective bargaining or other mutual aid and protection. While employers are allowed to regulate speech during work hours, they must ensure that their policies do not infringe on employees’ Section 7 rights.
The challenge for employers lies in distinguishing between speech that can be regulated (such as disruptive political discussions) and speech that is protected under Section 7. For example, if an employee talks about a political candidate’s promise to raise the minimum wage and relates it to their own work situation, that conversation might be protected as Section 7 activity if it reflects a shared concern among workers. This can blur the line between political speech and protected labor-related speech.
Adding to the complexity, Section 7 protections extend to taking time off to attend rallies or protests if they relate to work issues like pay equality. Employees are also protected when they organize in support of workers at other companies, such as advocating for a living wage, or when they appeal to lawmakers about working conditions.
Mutual misconception: ‘Just vote — or just vote the right way.’
Some employers encourage employees to vote or allow them to share “get out the vote” messages, which is generally low risk. However, it’s wise to require permission before sharing even neutral voting messages.
Some employers may suggest how workers should vote based on business impacts, but this is risky and may violate the law. Since the line between advice and coercion is thin, it’s best to avoid suggesting how employees should vote and never penalize an employee for their voting choices.
Hypothetical: One employee is wearing a “Trump 2024” button to work; another just hung a “Harris/Walz 2024” poster in their workspace. What can be done about this kind of political expression?
Creating and implementing a consistent dress code or appearance policy is key in these situations. Be sure to consistently enforce any rules prohibiting employees from wearing apparel and accessories with political statements. For example, if a business doesn’t allow employees to wear “MAGA” hats in support of Trump, it also shouldn’t let them wear hats promoting Harris or any other political candidate. Likewise, an employer can establish reasonable, consistent limits on posters and other workplace displays, so long as it complies with the NLRA rules mentioned above regarding employment topics.
Political ads, and debate snippets prove one thing: every company should be prepared to handle the political tensions in the workplace. Now is the time to decide how your company wants to handle the hypothetical situation above. Then train managers on how to handle tough conversations and update policies to align with the company’s position.
Stephen Scott is a partner in the Portland office of Fisher Phillips, a national firm dedicated to representing employers’ interests in all aspects of workplace law.
