Guest blog: Keeping things civil & legal when talking politics at work

By Mike Griffaton

When former House Speaker John Boehner referred to Ted Cruz as "Lucifer in the flesh," he wasn't inviting reasoned discourse over presidential qualifications. His comment is one of the milder remarks in an election season filled with political memes, vitriol and inflammatory rhetoric about Muslims, immigrants, "playing the woman card" and even which bathroom to use. Such comments-intertwined as they are with issues of race/ethnicity, religion and gender-generate passionate debate. Thanks to the intersection of 24/7 news and social media and employees' proclivity for checking social media at work, it's not surprising when such discussions enter the workplace. And while an informed electorate is good for democracy, it can be bad for business when passionate debate turns contentious.

An outright ban on political speech at work is impractical, but employers still have considerable discretion in how to maintain civility in the workplace. Ohio law does not specifically protect employees' political speech or activities, whether at work or off-duty. Nor does federal law protect against discrimination, retaliation or harassment because of political activities or affiliation. The First Amendment only applies to government action, not to that of private employers. Despite this, there are risks to terminating employees for engaging in political speech. Instead, employers may consider doing the following:

Be aware of the potential for how conversations can become contentious and spill over into discussions of race, gender, religion, sexual orientation and other protected classes. So reiterate your company's EEO policy and standards of conduct and ensure employees understand that discussions that offend others based on race, religion, gender, etc. are not appropriate and will not be tolerated.

Remind employees of your social media policy if you have one and that what is said on social media is public, permanent and in some cases, personal. This means that comments on social media can be seen by coworkers and lead to issues at work-like when an employee posts derogatory information about a political candidate or "likes" or "retweets" what a candidate says which others may find derogatory. The employee may discover that coworker "friends" and "followers" no longer treat them as warmly as before-or worse. Explain to employees that discussing political issues in person rather than through social media, e-mail or texting may keep the conversation from devolving.

Encourage employees to vote, but don't impose your political views on them. Inform managers and supervisors they should remain neutral when encountering their subordinates discussing political issues. Will a Muslim employee be comfortable coming to a supervisor who expresses agreement with comments to ban Muslims from the US, or will an LGBT employee come to a supervisor who vocally supports the North Carolina bathroom law? At the same time, remind employees not to impose their views on their coworkers or try to force them to engage in political speech.

Remember that political speech may also encompass discussions about working conditions, wages or other terms and conditions of employment, and these discussions are protected under the National Labor Relations Act (whether the employees are unionized or not). So while a comment to "Make America Great Again" would not be protected under the NLRA, a comment to vote for a candidate because she wants to raise the minimum wage might be. It's often difficult for an employer to know the difference. So, ensure that any restrictions on speech are applied fairly, evenly and consistently. Along similar lines, be consistent in enforcing no solicitation/no distribution policies because it is problematic to allow solicitation for one candidate or cause but not for another.

Deal with any issues with employees' productivity resulting from political speech rather than the underlying speech itself-unless that speech involves harassment, discrimination, or retaliation.

Ultimately, keep an open door to listen to complaints or concerns and investigate those promptly just like any other workplace issue, and don't forget to partner with human resources or legal counsel if necessary.

Mike Griffaton is an attorney in the Vorys Columbus office. He focuses his practice on labor and employment law. He can be reached atmcgriffaton@vorys.com.