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Plaintiff’s counsel answers FAQ’s on election talk in the workplace

“Our country is in the midst of a heated campaign season, and political discussion and strong opinions inevitably arise in our daily discourse,” notes Scott Oswald, managing principal of the Employment Law Group, which represents employees in whistleblower suits and other employment matters. “This is no small issue for human resources professionals, as our political opinions predictably surface in everyday conversation between coworkers,” he notes, adding that it can be “particularly troublesome for HR departments because this election has proven to be one of the most hotly contested and divisive in recent memory.” In light of these potential problems, Oswald answers some FAQs on how HR professionals can manage these concerns in the workplace.

A few of these frequently asked questions are addressed below. This FAQ is not a comprehensive discussion of every issue that arises with political activity or discussion in the workplace, but it is meant to provide a broad overview of prominent topics.

Can employers limit political discourse and activity in workplace?

  • Public sector employees are already strictly limited with regards to political activity in the workplace, but employers in the private sector can likewise institute certain prohibitions in the workplace under most circumstances. A private sector employer may limit political overtures during work hours and prohibit the disbursement and display of political materials at the workplace. A wise private sector employer will ensure that any restriction on political activity applies to all ideologies, and does not favor or even appear to favor a particular political party or ideology.
  • Despite the general ability of employers to limit political activity in the workplace, the effect of the National Labor Relations Act (NLRA) should be considered. Section 7 of the NLRA guarantees employees the statutory right to participate in activity of “mutual aid and protection.” An example of this type of participation is an employee displaying her union’s logo while at work. The Supreme Court clarified this provision in the 1978 case of Eatex v NLRB. There, the Court held that political activity is protected under Section 7 when that activity relates to a specific and identifiable employment concern. Political activities such as soliciting coworkers can still be limited during an employee’s work hours.

Is political affiliation a protected class under the law?

  • Even though employers can limit political activity at the workplace, employers generally cannot treat employees differently based on their political affiliation. Although not every state has a specific law protecting political affiliation, political issues can often border other protected classes, such as gender and race. Employers should, therefore, avoid allowing political affiliation to play any part in employment decisions.
  • The District of Columbia provides more generous protections for employees than comparable federal laws and many state laws. The District of Columbia Human Rights Act (DCHRA) makes it specifically unlawful to discriminate against employees on the basis of political affiliation. Although employers may still prohibit political activity in the workplace, employers cannot base employment decisions on the basis of an employee’s politics. The District of Columbia has actually elevated political affiliation to a status that enjoys similar protections as disabilities, race, gender, and religious affiliation.

How are employee protections different for public sector employees?

  • Public sector employers should consider that employees are protected by the First Amendment of the Constitution. The heart of the First Amendment is aimed at protecting contrary political opinion. In essence, when we refer to “free speech” in the context of the First Amendment, we largely mean “political speech.” Therefore, the First Amendment prohibits a state employer from basing hiring or termination decisions on the political beliefs and affiliations of an employee. There is of course an exception to this general rule for positions related to policymaking and confidential political positions. For example, it is understood that a governor or mayor will hire policy advisors, such as a chief of staff, who share common political beliefs in order to further policy initiatives.
  • Public sector employees should likewise be aware of the Hatch Act. All civilian employees in the executive branch of the federal government, except for the President and the Vice President, are covered by the provisions of the Hatch Act. In general, the Act prohibits such federal employees from wearing partisan political buttons, t-shirts, displaying signs or other items while the employee is on duty or in a federal building. Furthermore, federal employees cannot use their government email accounts to distribute, send, or forward material that advocates a political party or candidate. In sum, federal employees should avoid any political activity that would attach their official titles or positions to that activity. Employees violating the Hatch Act can be removed from their positions.
  • Department of Defense Directive 1344 adopts comparable restrictions as the Hatch Act in that members of the Armed Services must not use their official authority to solicit votes for a particular candidate or issue, or solicit political contributions from others. A good rule of thumb for service members is that they should avoid engaging in partisan political activities that would infer that the Department of Defense has sponsored, approved, or endorsed a candidate or position. Service members who violate Directive 1344 can be charged und the Uniform Code of Military Justice.

Can employers endorse or support a particular candidate or position, and to whom can the employer express its support?

  • Private sector employees can, under the Federal Election Campaign Act, endorse political candidates or positions. Employers are allowed to communicate with its employees about such support so long as those employees are limited to a restricted class, which federal regulations have defined as stockholders and executive or administrative personnel. Employers cannot, therefore, press this support on hourly employees.

This is just a sample of the issues that arise when politics meets the workplace. Employers should keep in mind that it is unwise to take an employee’s political affiliation into account when making employment decision. Although this is not expressly illegal in every jurisdiction, as it is in the District of Columbia, it is closely related to other protected classes and employers should tread carefully. However, employers need not allow diffusive and distracting political activity to take place at the workplace or during work hours. Neutral and reasonable restrictions are allowed and should be instituted with care.

Source: Scott Oswald, Managing Principal, The Employment Law Group.