With the upcoming presidential election, and the country more divided than ever on politics, should political discussions be permitted in the workplace?
First, can an employer even restrict an employee’s political speech? In the famous words of lawyers everywhere: it depends. Generally, private-sector employers can limit political discussions and activities during work hours. However, employers should also be aware that certain political topics cannot be prohibited or limited in the work place during work hours. For instance, federal law protects an employee’s right to discuss labor issues with other employees. This could include wages, work hours, work conditions, healthcare, or anything else a labor union may be involved in or could be classified as “protected concerted activity.” In addition, public-sector employers cannot prohibit or limit speech regarding matters of “public concern” which can include speech about elections, pending legislation, and public health and safety.
What can a private-sector employer ban? Private-sector employers can discourage political discussions (except those involving labor issues) and have policies discouraging general workplace disruptions or activities that decrease productivity. Many political discussion issues will fall under either a communication-related or professionalism-type policy that most employers already have. Private-sector employers can also prohibit employees from wearing political clothing or bringing campaign materials into the workplace. These employers can also use their computer and social media policies as a means of enforcement if employees send political emails to coworkers or use time at work to post political opinions on social media sites.
So what are the options available to a private-sector employer when two employees are engaging in a heated discussion that does not involve labor issues? Employers still have a right to, and should, maintain a productive and non-hostile working environment. In a reported situation from several years ago, two employees in an office setting got into a heated discussion after a politician commented that women subject to “legitimate rape” were unlikely to get pregnant. The two coworkers disagreed to the point that they almost got into a physical fight in the office. In response, the company was advised to fire both employees for the disruption. In doing so, the company was advised that permitting that sort of behavior, due to the particular topic of discussion, could put the company at risk for a sex discrimination or hostile work environment suit if the female employees felt that a supervisor who agreed with the politician was hostile to women generally.
Private-sector employers should treat political expression as they would any other form of disruptive workplace communication. Employers should also have managers and supervisors set the tone and example for what is permitted behavior in the workplace. Managers can step in when political discussions begin to impact productivity and remind employees of workplace policies.
