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Jun 21, 2012

By Eric Johnson

Presidential elections stir up emotions, and the 2012 race for the Oval Office appears to be no exception.

This year’s presidential election has drawn a divisive partisan line in the proverbial sand. With this comes the desire for political rhetoric and expression from both sides, often resulting in heated discussions at the coffee shop, the gym and, unfortunately, even the office water cooler.

As a general (and prudent) rule, employers should try to keep all politics out of the workplace. Political dialogue and disagreements can drain employee morale and productivity but also can have more serious implications in the form of legal problems. This especially holds true when someone makes disparaging, allowed comments about a candidate’s race, religious beliefs, sexual activities and more.

Are there First Amendment rights in the workplace?

While employers can’t practically keep track of all discussions in the office during business hours, they should recognize that it is their right and obligation to curb political discussions and other displays of political support within the workplace.

Chances are, some employees may feel it is their right as an American citizen to exercise free speech and share opinions related to a political candidate or a hotly debated issue. However, in reality, private sector employees do not have First Amendment rights in the workplace. Employers need to fully understand exactly what this means, and also what it does not.

Unionized workforce or not, the National Labor Relations Act (NLRA) does provide private sector employees with the right to engage in “concerted activities” for their “mutual aid or protection.” U.S. Supreme Court decisions have held this “mutual aid” as something that protects employees seeking to improve working conditions through “channels outside the immediate employee-employer relationships.” This may include political expression.

There’s a catch, however. While the NLRA does protect a certain level of open expression by employees, this protection extends only to political activity directly related to employment issues.

Political paraphernalia is also not appropriate

Under these provisions, an employee could say, “Obama supports minimum wage. He will help increase wages at our company.” On the other hand, the same employee could be restricted from saying, “Obama is good for America. Vote Obama in 2012.” These restrictions not only apply to verbal communications but also to emails. Employers have the right to ban non-business use of corporate computers and email systems.

Another thing for employers to keep in mind is the fact that while the content of the message may be protected, the method of delivery may not be. For example, employees cannot run up and down the hallways all day shouting, “Obama supports minimum wage,” instead of working, but if protected expression does not interfere with productivity, employers need to tread lightly to avoid being perceived as disciplining employees for said protected behavior.

Also, prohibition of political expression not protected under the NLRA should extend to campaign paraphernalia, including posters, flyers and buttons. Implementing a non-solicitation/non-distribution policy is the easiest way to ban such displays. Additionally, dress code policies can be designed to prohibit employees from displaying political items, such as buttons, pins, hats, etc. at work. In unionized workplaces, remember that the NLRA gives employees the right to display labor union insignia at work.

While much the issue of politics in the workplace focuses on employee behavior and the restrictions employers can implement, there also are restrictions on what employers should and shouldn’t do. One notable one is the fact that management should not openly promote political preferences, either verbally or in writing, including emails, in an effort to persuade employees.

Special rules for “restricted class” employees

Federal election laws do permit corporations to persuade a “restricted class” of individuals to vote for or against a specific candidate.

“Restricted class” is specifically defined as “executive or administrative personnel” who are employed on a salary basis and who have policymaking managerial, professional or supervisory responsibilities. This includes company officers, executives, managers and lawyers. The average employee should not receive the types of communications that would go to restricted class employees. Take care to disseminate such information carefully and to the right parties.

In etiquette circles, the rule of thumb always has been to avoid discussions of religion, money and politics at dinner parties. It’s safe to say the same holds true for the workplace. Employers should avoid allowing their place of employment to be turned into a battlefield of heated discussion and political barbs.

Implementing and evenly enforcing proper policies to keep politics during this presidential election season – or at anytime – will not only enhance the overall work environment but also help limit your company’s liability should a complaint arise.

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