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Beware the pitfalls of workplace politicking (by employees and employers alike) — but heed the risks of trying to quash it

Politics and the workplace can make strange — and hostile — bedfedllows, employers are reminded at each presidential election season. A CareerBuilder survey taken earlier this year found that 43 percent of employees expected to discuss the presidential race at the office. Twenty-three percent of those respondents said they have had a heated political discussion or fight with a coworker, supervisor, or other higher-up in the company. One in 10 said their opinion about a coworker had changed upon discovering that person’s political affiliation — typically for the negative. The increasingly contentious political climate clearly can take a toll on employee relations and morale.

It can also put employers at risk of liability. Several lawsuits were filed on the heels of the 2008 election, when discord over support for then-candidate Obama sparked allegations of bias. One Nevada employer, for example, had to fend off a Title VII associational race discrimination claim by an employee who contended that he was discharged because he voted for Obama. This year’s election also features hot-button issues. “We should expect to see not only possible racial issues surface as in the 2008 election, but also religious ones in this year’s election,” Chris Bourgeacq predicted. Bourgeacq is labor and HR counsel at AT&T Services, Inc. and a member of the CCH Employment Law Daily Advisory Board.

“As the run-up to the election continues, there is potential for disruption in the workplace where campaign funding solicitations occur as well as other politically motivated behavior that is disruptive, harassing, or discriminatory,” added Richard Gerakitis, a partner in the Atlanta office of Troutman Sanders LLP, also an Advisory Board member.

Maintaining civility. How can employers fend off discrimination allegations or other claims and keep peace at the office without trampling on employees’ civic spirit or running afoul of the law? “Making express the restrictions on such activities in a workplace policy that is reemphasized daily until election day can limit the potential for workplace incivility,” Gerakitis advised.

Bourgeacq urged employers to use their existing HR policies on workplace harassment, EEO compliance, and even workplace violence to address election-related misconduct at work. “Most of these policies should cover the potential incivility this year’s election might bring.”

Falling back on existing policy is a safer bet for employers, so as to protect themselves from a potential NLRB charge for disciplining an employee for overzealous politicking. “The safest approach would be to rely on a violation of an existing policy unrelated to political speech or workplace postings—e.g. disrupting the workplace or harassing a coworker in violation of a workplace violence policy, or violating an EEO policy based on racial or religious harassment,” Bourgeacq said.

Restricting political speech. Private-sector at-will employees don’t have a constitutional right to talk politics at the office, of course, and are not so shielded from the negative repercussions of expressing their political views. Employees can be discharged for their political views, provided the employer doesn’t violate other workplace protections, such as the National Labor Relations Act or other state-law prohibitions on politically motivated discrimination or discharge for off-duty conduct. These protections raise a whole host of other liability concerns. Employers must tread carefully.

“To avoid potential NLRB issues, be careful how you go about limiting political posters or buttons, since certain political support is protected under existing NLRB law and Supreme Court precedent,” Bourgeacq warned. “There is little doubt that the current Board would apply any available precedent, or make new law, to protect pro-labor political speech.”

It’s easier to implement a “no political activity” policy if an employer prohibits posting or displaying all nonbusiness-related flyers, posters or buttons, Bourgeacq said. “However, if the employer has no such policy in place or has not uniformly enforced it, implementing a new policy could be tricky. The key is to be sure not to limit protected concerted activity, and support for a politician or cause that is pro-labor might be protected activity if the communication identifies the candidate or cause as pro-labor in some respect.”

“This is a nuanced area of the law requiring good legal and factual research before acting,” Bourgeacq cautioned. He recommended that employers first review NLRB GC Memo 8-10, which provides a solid analysis of protected concerted activity in the context of political advocacy.

The explosion of social media has thrown another wrench into an already volatile situation, of course. Some employers have implemented policies restricting the extent to which employees may identify themselves as representatives of the company while engaged in online activism. “A private employer can possibly throttle political social media postings by making clear to employees that they cannot represent their postings are on behalf of the employer,” Bourgeacq said. But he said employers would be ill-advised to try to otherwise clamp down on employees’ off-duty politics. “In general an employer should not, and in my opinion cannot, prohibit or punish employees for political advocacy,” Bourgeacq cautioned.

Employer politicking. And what of regulating employer political advocacy in the workplace? The issue has drawn considerable attention in the current election cycle, as reports surfaced that Republican candidate Mitt Romney urged employers to discuss their electoral preferences directly with their workers. In an email to employees, Westgate Resorts CEO reportedly told employees that a vote for President Obama would “threaten” their jobs. According to Huffington Post, the CEO of ASG Software told its workforce, “If we fail as a nation to make the right choice on November 6th, and we lose our independence as a company, I don’t want to hear any complaints regarding the fallout that will most likely come.”

Aside from in a small number of states that prohibit employers from trying to influence employees politically (Texas, for example, bars employers from retaliating against employees based on how they vote or refusing to divulge how they voted), such employer conduct is generally lawful following the Supreme Court’s Citizens United ruling. (In fact, a Federal Election Commission ruling found a labor union did not violate federal election law by compelling its own employees to campaign for and donate to a union-favored Congressional candidate.)

However, in a press statement taking Romney to task for urging employers to bully their workers, AFL-CIO chief Richard Trumka noted that such missives could well implicate federal labor law. The published CEO statements “include both direct and implicit threats and scare tactics to make employees fear for their jobs if President Obama wins. These are the same tactics that employers use against workers trying to organize a union. The Supreme Court has long recognized that even what appears on its face to be mere persuasion becomes inherently coercive when it’s an employer urging its employees to take particular actions.”

Bourgeacq agreed that employers may well be playing with NLRB fire here. “I think it very risky for an employer to imply that an employee’s voting choice might have a negative impact on that employee’s livelihood,” he said. “In that respect, I’d almost analogize the employer’s boundaries similar to what an employer can or cannot say in a union organizing drive.” As the NLRA commands, employers can make “no promises of benefits or threats of reprisal.”

Employers might face further risk from the Board for taking adverse action against employees who don’t fall in line with the company’s stated election preferences. “I could see this Board issuing a complaint against an employer who shuts down a plant or lays off a substantial part of its workforce, after previously making comments like the Westgate Resorts CEO, based on some theory of retaliation for engaging in protected section 7 activity.”

“The line between discussing candidate choices and subtle threats could be a blurry one, and the past few years have shown the current labor board has a different set of optics than most employers,” Bourgeacq said.

Some employers face peril beyond the NLRB. “I think it depends in large part on whether the employer is both public and regulated,” Gerakitis said. “If public and regulated, they’re likely ill-advised to advise employees on whom to vote for. The company risks retribution by a regulatory agency, its public shareholders, and even investor services in case it advocates a cause or candidate who is unsuccessful. It may not be worth that risk.”

“For companies that are privately owned,” said Gerakitis, “their only real risks come from their employees and given the current unemployment rate, there is little incentive for any employee to fight her employer over a political message regardless of how threatening it may be perceived.”

Whatever one’s politics, there is some solace in the fact that at least these thorny employment law issues will soon lay dormant. Until the next cycle begins…