Politics in the Workplace and Considerations for Employers

Employers may notice more employees expressing their political views in the workplace and requesting time off to vote in person or to cast their absentee ballot. Here are some considerations to help employers navigate this time of year.

Political discussions

First Amendment protections

The free speech provisions of the First Amendment apply to government actions against private citizens, not private-sector employers' actions against their employees. The First Amendment doesn't protect private-sector employees from their employer's ability to regulate political discussions in the workplace.

In the private sector, employers generally have more latitude to impose reasonable restrictions on political discussions during work time. Employees, however, may have greater protections when they're off-duty.

Note: Some states may offer limited protections to employees who express their political views or affiliations.

National Labor Relations Act

Employers should make sure they draft and enforce policies on employee conduct with Section 7 of the National Labor Relation s Act (NLRA) in mind. Among other things, this law grants non-supervisory employees the right to act together to improve wages and working conditions. The NLRA applies to both union and non-union employers. The law also protects employees from employer policies that could chill the exercise of these rights, according to the National Labor Relations Board (NLRB), which enforces the NLRA.

Political discussions by employees may trigger NLRA rights when there's a connection to work-related issues, such as the minimum wage, rest and meal periods, discrimination, and harassment. Additionally, employers may violate the law by enforcing restrictions during non-work hours (such as before or after work or during break times) or in non-work areas (such as break rooms or parking lots).

Keep in mind that recent decisions by the NLRB have broadened the definition of what is considered protected activity. Employers may want to discuss these developments with legal counsel and review employee conduct policies to ensure alignment.

Reasonable restrictions

Employers in the private sector may generally place and enforce reasonable restrictions on political discussions during work time, provided the policy doesn't apply to political discussions that are work-related.

However, trying to ban all of these types of discussions may be impractical and could have negative effects on employee morale.

A different approach to consider is:

Making your expectations for employee behavior clear by communicating well-crafted policies governing employee conduct and performance, and
Offering employees training and guidance on communicating professionally and handling disagreements.

If political discussions interfere with work performance, or potentially violate nondiscrimination laws or company policies, respond promptly. Make sure you enforce your policies consistently.

Time off to vote

Most states and the District of Columbia have at least some type of voting leave requirement. In general, states handle the requirements by either granting employees:

As much time as needed. For example, Minnesota requires employers to allow employees to take the time necessary to appear at their polling place, cast a ballot, and return to work on the day of the election (or for early or absentee voting);
A specific amount of time. For example, the District of Columbia requires employers to provide at least two hours for employees to vote;
Time off only if they lack sufficient time outside of work. For example, California requires that if an employee doesn't have "sufficient time outside of working hours" to vote, they must be provided enough time off from work to enable them to vote, but only two hours of such leave must be paid; or
Time off based specifically on the distance to the employee's polling location. For example, Nevada allows for one hour of paid time off if the distance is two miles or less, two hours if it's more than two miles but less than 10 miles, and three hours if the distance is greater than 10 miles.

Some of these states also require employers to provide leave for election officials. A few other states provide election-official leave only. Check your state law for the requirements that apply to you.

Early voting and voting by mail

Depending on the state, employers may be required to provide leave during the early-voting or absentee-voting process and/or state law may provide certain other protections for individuals who vote by mail. For instance, in Kentucky, employers must provide employees with at least four hours of leave to request an application for, or execute, an absentee ballot during the office of the clerk's normal business hours, or to vote on election day. In California, employers are prohibited from asking or requiring an employee to bring their vote-by-mail ballot to work or to complete the ballot at work.

Note: Some voting leave laws don't expressly address early and absentee voting. In such cases, you may want to consult legal counsel. In the absence of a requirement, try to be flexible and allow employees to use other employer-provided leave if available.

Employees running for office

Some states expressly prohibit employers from taking adverse action against employees because they're a political candidate, an elected official, or miss time from work in order to perform duties associated with their elected position. Some states also require employers to provide unpaid leave so employees can serve as elected officials. Check your state law to ensure compliance.

Use of company equipment

Employers generally have a right to prohibit employees from using company equipment and resources, such as work computers, email, and bulletin boards, for non-work related purposes. This includes company resources that are used to promote candidates, political ideas, and other non-work-related information. Make sure any restrictions are applied consistently and apply to all similar types of conduct. Clearly communicate these rules to employees in a written policy.

Political posters and pins

If political posters, pins, and other material that employees display in their workspaces or on themselves are a concern, you generally have the right to establish reasonable limits. At a minimum, indicate that any material that violates the company's nondiscrimination and anti-harassment policy or dress code is prohibited.

Note: Any union-related material that expresses a political view may be protected by the NLRA. In addition, an employee's poster, pin or t-shirt that has a connection to work-related issues, such as promoting a candidate's position on minimum wage or paid sick leave, may be protected as well. Consult with legal counsel if you have questions about your particular workplace.

Employer influence

Certain laws may restrict or prohibit employers from attempting to influence employees' votes or political activities. For example, several states prohibit employers from trying to coerce employees into voting a certain way. Some states also go a step further by prohibiting employers from disciplining employees for refusing to attend an employer-sponsored meeting concerning political matters. Make sure you understand the laws that apply to your business and ensure that your company doesn't violate these rules.

Conclusion

Review and understand your rights and obligations regarding political activity in the workplace, and have policies and practices in place that comply with all applicable laws.

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_{This article was originally published as an "ADP HR Tip of the Week" which is a communication created for ADP's small business clients.}