Regardless of the type of business, employees expressing opinions about the upcoming election and politics generally is not uncommon. Election time can be a legal minefield for employers even in the calmest of times. Employers often wonder what, if anything, they can do to limit or prohibit politics in the workplace. There may be a variety of reasons for addressing politics in the workplace, including the employer’s own ideological beliefs, productivity concerns, problems with harassment, bullying, decreased morale, and other reasons. It is important that employers understand what they can and cannot do or say with respect to their employees’ political discussions and activities in the workplace.
Whether an employer may establish and enforce policies prohibiting political discussions, messaging or activities at work depends largely upon whether the employer is a private employer or a public employer. This article will focus primarily on private employers; however, public employers should be aware that their employees do not give up their Constitutional rights when they enter the workplace. In addition to free speech rights afforded by the U.S. Constitution, some states have their own statutory safeguards when it comes to protecting political speech. The Revised Code of Washington 41.06.250 expressly provides:
Employees of the state or any political subdivision thereof shall have the right to vote and to express their opinions on all political subjects and candidates and to hold any political party office or participate in the management of a partisan, political campaign. Nothing in this section shall prohibit an employee of the state or any political subdivision thereof from participating fully in campaigns relating to constitutional amendments, referendums, initiatives, and issues of a similar character, and for nonpartisan offices.
Accordingly, public employers should tread carefully and consult with counsel prior to implementing any policy or taking any action against any employee-related to political speech. Private employers, however, have much more latitude to restrict speech in the workplace.
It may come as a surprise to some, but the First Amendment does not protect employees’ free speech rights in the private workplace. Among other things, the First Amendment to the U.S. Constitution protects individuals from governmental restrictions that seek to limit speech. Generally, the First Amendment does not guarantee employees the right of unlimited free expression in the private workplace and does not protect employees from discrimination based on their political beliefs. Accordingly, with very few important exceptions, a private employer may regulate employees’ expression of political opinions in the workplace. However, policies restricting employee actions should always be uniformly applied and consistent with the employer’s business needs, policies, and past practices.
While private employers have the general right to restrict politics in the workplace, there are some very important exceptions to this right.
Even if an employer may legally prohibit or limit employees from expressing their political opinions in the workplace, it does not mean an employer should implement such a policy.
If such a policy were implemented, could it be uniformly and consistently enforced? Workplace policies must be enforced at all levels of an organization from the President to the receptionist.
It is important to consider the goal of any policy restricting politics and political discourse in the workplace. Is the heart of the problem current or anticipated issues related to civility and respect in the workplace? A review of the existing handbook may reveal that policies addressing these issues already exist. It is not necessary to implement a specific policy related to politics to address problems that may arise because of politics in the workplace.
Political debates often touch on issues or areas that are protected by law, such as race, sex, gender identity, sexual orientation, religion, medical issues/healthcare, unions, etc. and may already come within the scope of the employer’s existing discrimination or harassment policies requiring civility and tolerance. Issues related to employees expressing their opinions or preferences through their clothes may be addressed by an existing dress code policy. Employers should remind employees of existing policies and clearly communicate expectations. Regular review of workplace policies ensures that policies reflect the current law and the organization’s philosophy.