As leaders work with their teams and HR departments to develop political speech policies and enforcement strategies, here are key steps to consider.
From an assassination attempt to an eleventh-hour change in nominee, the 2024 U.S. presidential election is shaping up to be one of the most consequential, hectic and controversial in living memory.
It's creating headaches for CEOs, too. Littler's 2024 Annual Employer Survey Report found that, even early in the year, 87% of employers were already concerned with managing divisive political and social beliefs among their employees leading up to the election.
It's clear why. Political discussions in the workplace raise myriad labor and employment law issues, including those stemming from anti-discrimination laws and the National Labor Relations Act (NLRA). How top executives manage these issues can also implicate their organization's brand, reputation and values.
Thankfully, leaders looking to be proactive on this front have tools at their disposal. Here's what to know about relevant federal, state and local laws, along with recommended practices employers can start enacting right now.
How Companies Can—and Can't—Restrict Political Speech in the Workplace
There is generally limited legal protection for employees engaging in political activities in the workplace.
Principally, there is no constitutional right to political free speech in the workplaces of private employers. The First Amendment applies only to government action, and therefore does not limit private employers from regulating employees' communications. In fact, private employers typically can refuse to hire and even fire "at will" employees because of their political views without facing legal repercussions, at least at the federal level.
But executives should pay attention to the state and local jurisdictions where they operate. For example, at least 11 states have laws that prohibit employers from disciplining or otherwise restricting employees from expressing their political views or party affiliations. The District of Columbia also prohibits employers from discriminating against an employee's actual or perceived political affiliation.
Some state laws even protect speech that goes beyond purely political matters. California courts have ruled that advocacy for certain rights or for disabled individuals constitutes "political speech" protected by statute. Similarly, Connecticut law extends First Amendment protection broadly to speech by employees of private companies, prohibiting employers from taking adverse action against an employee in response (unless it interferes with the employee's job performance or working relationship with the employer).
Executives should take special care when making decisions based on employees' social media posts, too, as employers are limited in how they can access employee accounts in the 26 states with social media privacy laws. These laws prohibit employers from accessing an employee's non-public social media posts, so any employer wishing to discipline an employee for a post on social media must first ensure that they did not obtain it in violation of the law.
The Blurred Lines of Protected Workplace Speech
While executives generally have broad authority to set and enforce a political speech policy in the workplace, they should keep a close eye on encroaching regulators as the election nears.
For instance, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo has signaled she wants to expand the scope of protected activity under the NLRA to include social justice and certain "political statements," such as writing phrases in support of political and social causes on company uniforms.
Historically, the U.S. Supreme Court has interpreted "mutual aid or protection" activities covered by the NLRA to mean that non-supervisory employees may organize as a group to "improve their lot" outside the employer-employee relationship. This traditionally includes discussions about wages, hours, and other terms or conditions of employment. Recently, however, the NLRB has dramatically expanded the concept of "protected concerted activity" to include employee advocacy on behalf of individuals who are not "employees" as defined by the NLRA, including individuals employed by another employer.
Political discussions may trigger NLRA rights when they relate to employment issues, such as discrimination or minimum wage increases. Under an expanded definition, even more political issues may fall under the NLRA's jurisdiction—making it more challenging to address in a workplace context.
What's more, political conversations at the workplace can potentially lead to claims of employer discrimination, harassment and retaliation, which may violate federal, state or local anti-discrimination laws. For example, if the political discussion involves race, color, sex, sexual orientation, gender identity, national origin, religion, age, or disability, anti-discrimination law claims could arise. Employees might allege that an employer's action in response to a political discussion is evidence of—or serves as a proxy for—illegal employment discrimination.
Such claims could become more common in the wake of the U.S. Supreme Court's recent decision in Muldrow v. City of St. Louis, which makes it easier for plaintiffs to bring workplace discrimination lawsuits.
How CEOs Can Make an Election Game Plan
As leaders work with their teams and HR departments to develop political speech policies and enforcement strategies, here are key steps to consider.
- Create clear workplace politics and social media policies. Companies should craft and implement effective policies and rules related to legitimate employer interests that reduce any ambiguity over what political activity or expressions are covered. They may also want to discourage supervisors from having political discussions with subordinates to minimize potential claims of discrimination, harassment or bullying.
- Communicate the policies. Ahead of the election, remind employees about any policies and rules covering anti-discrimination, harassment, retaliation, social media, voting leave, and any other related areas. Executives should also consider making dispute resolution procedures available to employees who may feel uncomfortable about political activities in the workplace. At a minimum, it's wise to designate an HR or legal contact to whom employees can reach out with any concerns.
- Conduct training. Leadership teams can also consider training to ensure any policies are understood by all employees. It's especially important to train managers and supervisors on lawful policies and rules related to political activity, including a general awareness of the pitfalls of limiting political speech and potential liability risks. Notably, managers may need training on how to identify and remedy politically charged conversations.
- Be prepared to enforce the policies. Leaders should ensure their company is applying policies in a consistent, uniform and non-discriminatory manner. It's especially important that HR is prepared to promptly and effectively address any violent, substantially disruptive, or unlawful communications and activities.
Ultimately, a carefully crafted and uniformly enforced policy that limits certain political activities and political speech can help increase worker productivity, lower the risk of employee claims, and contribute to a better workplace. With a contentious election on our doorstep, now is the time to put one in place.
Originally published by Chief Executive.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.