Between the Trump assassination attempt, Biden dropping out of the presidential race, and the news of Harris securing the democratic nomination for president, the last few weeks in the political sphere have been an emotional roller coaster. It is a general rule of conversation etiquette to refrain from talking about politics in the workplace, but considering the shock of the last few weeks, and the upcoming November election, employers should not be surprised when employees are eager to engage in passionate political discussions at work.
Accordingly, employers should start focusing on how to lawfully regulate speech in the workplace to avoid a toxic and divisive working environment. But this is America, what about freedom of speech? Employers must first understand how their status as a private versus a public employer impacts their ability to regulate speech. It is important to dispel the myth that employees are guaranteed a constitutional right to free speech at work. The First Amendment applies only to government action, and it does not limit a private employer's ability to regulate an employee's communications at work.
But keep in mind that political discussions involving hot-button issues—such as abortion, immigration, or inflation—may still implicate certain employment laws, including anti-discrimination and harassment laws, the National Labor Relation Act (NLRA), or Oklahoma's voting leave laws. For example, a heated conversation about the rising inflation costs may also involve communications regarding employees' wages, which may constitute the exercise of legally protected rights under the NLRA. Or an employer's response to negative comments from a supervisor regarding Harris being the first female presidential candidate may serve as evidence of gender discrimination for a claim brought under Title VII.
There is not currently any Oklahoma state law that prohibits employers from restricting an employee's ability to express their political views at work. Oklahoma law, however, requires employers grant its employees two (2) hours of time to vote so long as the employee has provided at least three (3) days advance notice of their intent to vote. See 26 O.S. § 7-101. An employer's failure to comply with this law can result in civil penalties.
It begs the question, what kind of parameters can employers put in place to manage politics in the workplace? Employers may implement policies that restrict political speech and related activities that are narrowly tailored to advance legitimate and substantial business interests. In the current digital era, social media policies are also encouraged. And if you are not already providing routine training to employees on your anti-discrimination, harassment and retaliation policies, now is the time to ensure your employees are up to speed.
Before taking any adverse action against an employee for engaging in political speech in the workplace, it is imperative that employers analyze whether the speech intersects with any applicable federal or state laws.
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