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July 19, 2016 by William B. “Bill” deMeza Jr. | Kenneth A. Jenero

This article was written well before we knew who our president was to be. Now we know and the country is divided. No matter the side you are on, there are 2 absolutes to stay away from in the workplace: Religion and politics.

I can assure you that you are not 100% free of this in your company and it is getting more dangerous by the day to have these discussions. I am quite sure wherever these conversations are having, productivity is also suffering as doing both, arguing religion and politics will not allow you to accomplish your work tasks at 100%.

Asking you if this is happening is irrelevant. Asking you to reinforce a policy is inevitable. If you wish to keep production at full capacity and keep a culture for everyone, these policies and conversations must happen today.

~The Organic Recruiter

HIGHLIGHTS:

As the 2016 election nears, some employers are losing productivity, attention to customer service and worker focus as personnel discuss or advocate their political opinions. However, private employers often can reassert control by recognizing that two commonly held beliefs about “politics in the workplace” are, in fact, misconceptions. Employers who institute carefully crafted and uniformly enforced policies that limit political activities can lower the risk of employee claims while increasing worker productivity. Everyone has experienced both “workplace politics,” in which Type A employees claw their way to the top at the expense of co-workers, and “politics in the workplace,” in which employees discuss candidates for office and political issues of interest.

We now are deep into the 2016 election cycle, which means it’s likely that, given many employees’ intense interest in and support of candidates and issues, some employers are losing productivity, attention to customer service and worker focus as personnel discuss or advocate their opinions. However, private employers often can reassert control by recognizing that two commonly held beliefs about “politics in the workplace” are, in fact, only simple misconceptions.

Misconception 1: Employees Have a Constitutional Right to Talk “Politics” at Work

Wrong.

Employees, as well as many employers, commonly but mistakenly believe that the First Amendment to the U.S. Constitution guarantees “freedom of speech” at work. In fact, the First Amendment applies only to government action and neither limits the rights of private employers to regulate employees’ communications nor provides any constitutional right for those workers to express thoughts or opinions at work. As a result, there is no constitutionally protected right of “free speech” in the offices and factories of private employers. Although employees may be entitled to express their views freely on their own time or on a soapbox in the park, they have no such wide-ranging constitutional rights at work. Absent rights provided by one of the limited exceptions discussed below, there are no legal protections for political activities in the workplace, so private employers generally may refuse to hire, adjust pay/benefits and even discharge “at will” employees because of their political views. In short, “political discrimination” often is not unlawful discrimination.

Many employers do have policies limiting the discussion of political candidates and issues at work because of the risks of unlimited “free speech” in the workplace. For example, although there is no general federal law prohibits employment discrimination on the basis of political affiliation or actions, sometimes seemingly neutral conversations about “politics” can lead to claims of employer discrimination, harassment or retaliation violating federal or state discrimination laws.

Workplace debates about a particular candidate’s fitness for office often include mention of genders, races or religions or their views on hot-button social issues such as abortion, “family values,” immigration and healthcare, which often are polarizing issues on which there are strong and opposing views among employees of different genders, religions, national origins, etc. The potential for heated disagreements – and inflammatory, impulsive, ill-advised comments – is obvious. Unfortunately, such comments sometimes result in claims of discrimination or retaliation in which it is alleged that “my supervisor is biased against [women/non-Christians/Hispanics] as shown by his comments about [healthcare/abortion/immigration policy]” or “the company punished me because I disagreed with my boss about [a social issue implicating gender, nationality, or religion].” Further, public discussion of schoolyard “bullying” seems to have prompted claims of “bullying” harassment by both supervisory and non-supervisory employees who forcefully advocated their political opinions to unreceptive co-workers. It is understandable, therefore, why many employers simply elect to minimize such controversies by prohibiting all “politics” at work.

Two General Exceptions

There are two general exceptions to the principle that private employers may legally implement a “no free speech or political activity in the workplace” policy.

First, laws in some states provide protections for political activities. For example, several states have “free speech,” “political activity” or “off-duty conduct” laws that give employees rights not provided by federal law or the laws of other states. As can be seen, the laws vary widely in scope and content; therefore, employers – particularly multistate employers – must carefully craft their own policies.

Second, and perhaps most importantly, the National Labor Relations Act (NLRA) restricts an employer’s right to limit non-supervisory employees’ communications about wages, hours and other terms or conditions of employment. These restrictions may apply not only when the protected communications occur in the workplace during working times but also when they occur outside the workplace during non-working times. In addition, the NLRA restrictions protect non-union employees as well as union-represented employees. The National Labor Relations Board (NLRB), the federal agency that enforces the NLRA, has long recognized that all non-supervisory employees have the right to engage in concerted communications about such matters as pay, benefits, and workplace safety as long as they do so in a lawful and proper manner. Such communications generally will not lose their NLRA protection unless they are expressed in a manner particularly “opprobrious, disloyal, malicious, or disruptive to workplace discipline.” Unfortunately, there is no bright-line test, and the NLRB has continued to stretch the outer limits of what it believes is “protected.”

As interpreted by the NLRB, employee communications are “concerted” not only when he or she acts with or on the authority of other employees but also when the employee seeks to initiate, induce or prepare for group action or brings truly group complaints to management. This includes a broad range of communications, some of which may be engaged in by lone employees acting with no apparent group involvement. It also is well established that the NLRA protects employee communications and activities “in support of employees of employers other than their own” or which seek to “improve their lot as employees through channels outside the immediate employee-employer relationship.” One such channel is political activity. Therefore, employees’ statements and actions concerning political issues and events may be protected by the NLRA if there is a sufficient connection to the workplace or to employees’ terms and conditions of employment.

Because the NLRA’s protections are limited to political topics with a nexus to specific employment-related issues, employers lawfully may restrict workplace communications and activities that are purely political in nature. This would include, for example, communications generally touting a political party or candidate; displaying or distributing a “Vote for Smith” poster or campaign button; and wearing a T-shirt that seeks support for a proposed law to increase the speed limit. Although those communications and activities clearly are political in nature, they lack the connection to employment-related issues required to bring them within the scope of the NLRA’s protections.

But the line between unprotected “purely political” communications and NLRA-protected communications becomes blurred when the subject matter touches on wages, hours or other terms or conditions of employment. For example, displaying posters or distributing leaflets saying “Vote for Smith – She’ll Raise the Minimum Wage,” or wearing a T-shirt asking co-workers to “Support Workers’ Rights” by voting against a proposed “right-to-work law” likely are protected by the NLRA. Employers who restrict those types of communications risk exposure to a NLRB unfair labor practice charge. Not surprisingly, the NLRB also has extended the NLRA’s protections to “mixed communications” that contain both protected and unprotected political content. As a result, employers have an even greater challenge when deciding which communications are or are not protected under the NLRA.

Misconception 2: Employees Must Always be Allowed to Display and Distribute Political Materials and “Campaign” in the Workplace

Wrong again.

Employers generally have the right to adopt and enforce non-discriminatory rules prohibiting non-work-related activities in their workplaces, including “purely political” activities. For example, employers may ban employees from displaying or distributing materials that are purely political in nature; soliciting co-workers or customers to support purely political causes; using the employer’s computer and email systems to engage in purely political communications; or wearing buttons, shirts or other items of clothing with purely political messages. Such activities are not protected by the NLRA. In addition, employees who engage in such activities in violation of the employer’s published policies may be lawfully disciplined or discharged.

However, as noted above, political activities with a sufficient connection to employment-related issues may be protected by the NLRA. Therefore, any restrictions on such activities must comply with rules developed by the NLRB for such statutorily protected activities. For example:

An employer cannot lawfully prohibit workplace conversations about protected political subjects, even during working times, unless it similarly prohibits all other non-work-related communications.

If the protected political activity goes beyond simple conversation to actual solicitation of money or other support for a candidate or cause, then it may be prohibited during working times. But it may not be prohibited at all times on the employer’s premises.

If the protected political activity involves distribution of literature, then it may be prohibited during working times and in work areas. But it may not be prohibited on non-working time in non-work areas.

If the employer provides employees with use of its computer and email systems to perform their duties, then it generally cannot prohibit employees from using those systems to engage in protected political activity during non-working times. However, employers still have the right to impose uniformly applied bans on employees’ non-work-related use of other company equipment (such as copiers, printers and office supplies) to engage in political activities, including those protected by the NLRA.

In the absence of significant and demonstrable “special circumstances” – such as unique concerns about safety, patient care, damage to machinery or equipment, or customer service issues – an employer cannot prohibit employees from wearing buttons, T-shirts or other clothing displaying protected political messages.

As a result of the NLRB’s rules, employers lose much of their control over employees’ political communications and activities, both inside and outside the workplace, if they have a sufficient nexus to employment-related issues. Employers may not maintain overly broad rules that reasonably would be interpreted by employees as restricting such communications and activities, and employees may not be disciplined or discharged for engaging in them. We also can expect the current Board to try to find ways to expand the types of political activities that fall within the scope of the NLRA’s protection, i.e., the required nexus may become more and more attenuated.

What Should an Employer Do?

Several “next steps” exist for employers concerned about potentially work-disrupting, productivity-sucking, fury-inducing “politics in the workplace.”

First, prepare and implement a strong “no political activity” policy that has appropriate carve-outs for communications and activities protected by the NLRA or applicable state laws. Such carefully drafted policies not only are permitted but are considered an employer “best practice.” An absolute ban on political communications and activities would be both impractical and unlawful under the NLRA.

Second, employers must ensure that their policies, including those dealing with political activities, comply with the NLRB’s rules regarding permissible restrictions on workplace conversations, solicitation, distribution, use of the employer’s computer and email systems, and messages displayed on buttons, shirts and other items of clothing. Although the NLRA prohibits employers from imposing an absolute ban on all political expression, it permits policies that 1) prohibit purely political communications in the workplace; 2) prohibit employees from soliciting money or support for political candidates or causes during working times; 3) prohibit distribution of materials about those subjects in working areas and during working times; and 4) prohibit any related workplace communications or conduct that disrupt operations or productivity, or are accompanied by violent, unlawful or other extreme behavior. However, given the NLRB’s aggressive, pro-employee activity in this area, employers must be on the alert for new developments requiring modifications of their announced policies.

Third, employers should be prepared to promptly and effectively address violent, substantially disruptive, unlawful and other political communications and activities that fall outside the scope of the NLRA’s protection.

Fourth, employers may wish to discourage supervisors (either formally or informally) from having political discussions with subordinates in order to minimize potential claims of discrimination, harassment or bullying. As noted above, supervisors are not protected by the NLRA. However, any such policy also must be tailored to comply with applicable state law.

Fifth, employers should periodically remind employees – perhaps by redistribution of the relevant policies – that the company insists on respectful treatment of all personnel, does not tolerate discrimination, harassment or retaliation, limits employees’ access to and use of social media, and will investigate employee complaints of mistreatment. Although such reminders will make plain that political communications must comply with existing policies, the reminders must be carefully drafted in light of the NLRB’s views (which expressly recognize that a certain amount of “disrespectful” conduct is permitted by the NLRA).

Finally, employers must enforce “political activity” policies even-handedly. If a violation is suspected or a complaint is made, a careful investigation should be conducted and discipline issued as appropriate. “Even-handed” enforcement means not only consistent enforcement among all employees regardless of political affiliation or opinion but also consistency as to subject matter. This means, for example, enforcing facially lawful “no solicitation” and “no distribution” rules as to both protected political solicitations and distributions as well as other types of workplace solicitations and distributions. Applying the rules only to NLRA-protected activities (e.g., protected political communications, union-organizing activities, etc.) will draw an NLRB unfair labor practice charge.

Conclusion

Employers need not lose control of their workplaces during the run-up to elections. A carefully crafted and uniformly enforced policy that limits political activities and “free speech” will lower the risk of employee claims while increasing worker productivity.

Original Article