Election Enmity and Ballot Blues: Properly Managing Political Activity in the Workplace
As we all know, politics is by far the most polarizing topic likely to come up in conversation in today’s workplace. The American population is more divided along party lines than at any other point in post-Reconstruction history. With the rise in partisan ideology and behavior comes additional tension and disagreement that turns the office environment into a dusty Western saloon, where one cross look or misplaced insult can devolve into a metaphorical, or even literal, barroom brawl.
Indeed, surveys state that more than half of employees nationwide believe political discussions are generally not appropriate for the workplace, yet about one-quarter of those surveyed admit to talking about politics at work for at least fifteen minutes per workweek. Other studies show that approximately 25% of all employees, including a disproportionately high number of younger workers, feel stressed and isolated at work because of political discussions or believe they have been subject to hostile or discriminatory treatment by their employer as a result of partisan debates.
Political discussions at work are typically not fruitful in terms of promoting civic engagement or unifying workers of diverse backgrounds. More than 63% of Americans polled in 2019 said that while they had more frequent political discussions during the Trump presidency than in previous administrations, they feel those discussions are more stressful and frustrating than in prior years. In addition to worsening morale, political division is bad for productivity. A staggering 87% of employees admitted to reading political social media posts during the workday after the 2016 election, and 29% said that they were less productive at work as a result. Now, in the wake of the former president’s second impeachment and the election of a new Democratic administration, tempers are flaring ever higher and the likelihood of division and conflict in the workforce is all the more concerning.
The deepening schism between the political classes—Republicans and Democrats, conservatives and liberals, those who support the news media and those who claim it is all “fake news”—means that HR professionals are working overtime to ensure that workers feel supported and safe from politically-biased treatment while reinforcing companies’ policies on appropriate workplace conduct and prohibited types of speech. It is essential for HR departments to dispel the myth that employees cannot be restricted from exercising their First Amendment rights of speech and expression in the workplace since no such rights exist in the context of private employment. Further, jurisprudence has long held that employers are free to regulate employee’s dress and conduct that causes disruption as long as they are even-handed in doing so and the result is not to favor one type or “brand” of political speech over another.
But, as with many topics, the devil is in the details. An employee who wears a “Make America Great Again” hat or a “Black Lives Matter” shirt in the office may be viewed as making a political statement not directly tied to any term or condition of their employment that may cause disruption, which could violate company policy. Employers have been quick to enforce such policies in light of the widely reported riots around the country and storming of the Capitol, as expressions of extremist views on topics like race relations have been seen to erupt into public displays of violence and mob mentality. And putting aside the threat of workplace violence, there is an inherent risk when political debates emerge in the workplace that employees may feel targeted, harassed, or bullied by their co-workers or supervisors if those discussions involve topics related to race, religion, gender, LGBTQ status, or other protected categories under federal and state anti-discrimination laws.
On the other hand, using the examples above, if the employee’s hat instead promoted deregulation of the employer’s industry, or the shirt referenced increasing the national minimum wage, then those statements may constitute “protected concerted activity” under Section 7 of the National Labor Relations Act which allows all employees (union and non-union) to discuss wages, benefits and other working conditions with each other free from any retaliation or adverse action. Add to the confusion the fact that Louisiana is one of several states that prohibit employers from retaliation against employees who engage in “political activities” or based on party membership.
These murky waters of what constitutes legally protected workplace conduct have been tested in recent years. Two former Google software engineers sued the company for alleged discrimination based on their perceived conservative political views and their status as male Caucasians after the two engineers were terminated for statements regarding gender and religion that were deemed to violate the company’s code of conduct. Google later entered into a conciliation agreement with the National Labor Relations Board and was forced to revise its policies and publicly clarify examples of permissible workplace behavior. Around the same time, the Supreme Court declined to hear a decision from the Fifth Circuit Court of Appeals in which it held that a national fast-food chain that prohibited employees from wearing “Fight for $15” buttons at work had violated the employees’ rights to protected concerted activity.
In these uncertain times, it is more important than ever to review your company’s policies on political activity in the workplace, and if you have questions about whether certain discussions or actions may be protected under state or federal law, consult with an experienced labor and employment attorney.