As employers look to foster productivity and keep peace during this political season, is there anything they can do to curb political speech? Yes, but there are risks to keep in mind.
By David Hiller and Mathew Parker
Presidential politics is once again the focus of our national attention. Not surprisingly, political debates can often spill over into the workplace. With the acrimony surrounding this year's election, heated disagreements at the watercooler can have negative consequences for employee morale, productivity and relationships. As employers look to foster productivity and keep peace during this political season, is there anything they can do to curb political speech? Yes, but there are risks to keep in mind.
No Freedom of Speech in Private Workplaces
Many incorrectly believe that First Amendment rights apply to the workplace. However, those protections don't extend to private employers. Thus, if a private employer wants to adopt policies limiting political speech in the workplace, it's free to do so under the First Amendment.
Limitations Imposed by the NLRA
Although the First Amendment doesn't protect political speech in private workplaces, the National Labor Relations Act imposes limitations on types of political speech employers can regulate. The NLRA protects private employees (unionized and non-unionized) against "unfair labor practices," including an employer's interference with employees' right to engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection." Federal courts and the National Labor Relations Board have interpreted the "mutual aid or protection" clause as protecting political speech in the workplace, provided that its content is linked to workers' well-being. Examples of such linkages are:
Vote for Trump to stop illegal immigration from cutting our jobs and wages; or
Vote for Clinton to raise the minimum wage.
The message need not concern an issue in the immediate workplace to be protected under the NLRA. However, it cannot be "purely political." The fact that the candidate of choice may be "pro-labor" or "pro-management" doesn't suffice. The content itself must contain a sufficient linkage to workers' interests to be protected from an employer's regulation.
Most cases involving workplace political speech concern distribution or posting of political literature by employees. The NLRA generally allows employers to limit literature distribution to non-work areas during non-work time. In the case of political literature, employers may impose an additional requirement that the literature be linked to workers' well-being. Employers who elect to require employees to obtain advance approval for distribution or posting of political literature should announce in writing that:
The only issue is whether the speech has a sufficient linkage to workers' interests;
It's irrelevant which candidate or issue the applicant favors; and
There will be no censorship or editing, and any literature that is sufficiently employment-related can be distributed "as is."
Technically, oral political campaigning could be limited to the same extent as literature distribution, but policing such a limitation would be wholly impractical. More importantly, however, where employee political disagreements cross the line between respectful debate and something much uglier, the fact that a dispute is rooted in politics or has a linkage to workers' well-being doesn't provide a free pass to violate policies against threatening, menacing, offensive touching and other misconduct.
A Risk for Legal Liability
Ohio courts purport to follow the "employment at will" doctrine, but they've created a "public policy" exception that all but swallows it. This doctrine basically permits an employer, or employee, to terminate employment for any or no reason, so long as it doesn't violate the law. The "public policy" exception provides a claim to any employee discharged or disciplined in contravention of a policy set forth in federal or state laws.
There's an Ohio law, R.C. § 3599.06, that prohibits an employer from "in any manner" intimidating an employee to induce or compel them to "vote or refrain from voting for or against any person or question or issue submitted to voters." An Ohio federal court held that an employee discharged in contravention of that public policy has a claim for wrongful discharge. In deciding whether to take corrective action against employees who violate any limitations on political speech, recognize that your actions could be characterized as an attempt to intimidate employees into supporting a particular candidate or issue.
Appropriately Limiting Political Speech in the Workplace
If you want to adopt policies limiting political speech in the workplace, it's important to keep in mind that policies should:
Not censor or attempt to control employees' political beliefs;
Be viewpoint-neutral and applied consistently and evenhandedly; and
Not limit speech concerning workplace conditions or political topics linked to workers' well-being.
When it comes to managing the workplace during an election season, employers must carefully weigh their interest in maintaining employee morale, productivity and relationships. Limiting political expression could negatively impact employee morale. In addition, employers could also unwittingly expose themselves to unwanted litigation.
David Hiller and Mathew Parker are attorneys at the Columbus office of Fisher Phillips, a national labor and employment law firm.