• The HR Specialist - Print Newsletter
  • HR Specialist: Employment Law
  • The HR Weekly

Can you rein in political speech at work?


America is as politically polarized as it has been since the Civil War. Right versus left, Democrats versus Republicans, red versus blue, one thing is clear—everyone has an opinion, and it’s often a loud one.

Most employers, though, would prefer employees focus on work and not the state of the world when they are on the clock. So how can you quell political arguments in the workplace?

THE LAW: The First Amendment protects citizens against government action limiting free speech, but does not limit private employers’ actions. (Public employers, because they are arms of the government, have limited ways of curtailing political speech.)

Some 30 states have laws barring employers from regulating legal, off-duty employee activities.

Finally, the National Labor Rela­tions Act guarantees employees’ rights to discuss working conditions without fear of employer reprisal.

WHAT’S NEW: The National Labor Relations Board (NLRB) has consistently sought to limit employer attempts to curb employee speech. When em­­ployers moved to discipline employees for statements made on social media, the NLRB backed employees as long as their statements dealt with workplace conditions.

On the other side of the coin, more companies are actively building grassroots political activities among employees and retirees. Their goal: persuading employees to lobby for legislation or elect candidates that help the company’s bottom line.

HOW TO COMPLY: When it comes to keeping your workplace civil in politically contentious times, you must balance employees’ interest in speaking freely with your interest in maintaining order and productivity.

In short, don’t put a complete gag order on all political discussions. Such a policy is impossible to enforce, plus it will choke morale and could actually open up your company to a lawsuit.

Instead, draft a policy that minimizes distractions, yet allows a certain amount of free speech. Then explain the policy to staff. Some tips:

1. Have a business reason for any re­­strictions. Limit only those political expressions that might affect productivity or customer relations. For example, you can ask a cashier to re­­move a “Legalize Marijuana” button, but you can’t ask an employee to remove a “John Smith for Senator” bumper sticker from his car.

2. Be consistent and evenhanded. Inconsistency is tough to defend in court. For example, don’t make employees remove pro-John Smith buttons, while allowing pro-Jane Doe ones.

3. Provide guidelines. Clearly tell employees that all workplace speech—political or otherwise—must be respectful, accommodating and tolerant of others’ views.

4. Don’t retaliate against off-duty political activity. In many states, em­­­­ployees are protected against discrimination, harassment or firing based on their after-hours political views and activities.

5. Never press employees to vote for a specific candidate. Almost every state forbids employers from using threats or employment consequence to influence an employee’s vote.

Also train managers and supervisors to steer workers back to work when political discussions become heated or distracting.

Further, political speech that is threatening or intimidating to religious, racial or ethnic minorities has no place in the workplace. Managers should be trained to recognize such speech and direct employees back to work.

Get out the vote: How to craft a voting leave policy

You can encourage voter turnout by implementing a voting leave policy. A voting leave policy shows you take the right to vote seriously.

Note: Thirty-one states have voting leave laws, which generally allow em­­ployees time off to vote during polling hours if there is no practical way to get to the polls before or after work or at break time. Feel free to adapt this sample voting leave policy:

  • The company encourages employees to participate in our democracy by exercising their right to vote.
  • While employees are expected to work their normal hours and make every effort to vote outside of working hours, employees who do not have time to vote before or after their regular working hours may take up to two hours off either at the beginning or the end of the regular workday to go to the polls. This time should be reported as time worked and is not charged against vacation leave, comp time or salary.
  • Employees should, upon request, be able to provide proof of voting. Super­­visors shall ensure that all employees are informed about the company’s voting leave policy well before election day.
  • This policy applies to all local, state and federal elections, including primaries, general elections and special elections.
  • No employee will be discriminated against because he or she voted, didn’t vote, took voting leave or for any other reason related to the legitimate exercise of the right to vote.