HR Tip of the Month: Politics in the Workplace, Understand the Legal RisksOctober 2016

Some employers may seek to ban political discussions because of its potential to disrupt the operation of the office. What managers and employers don’t always appreciate is that politics in the workplace may trigger certain legal rights and obligations.

Many employees are under the mistaken belief that they have a constitutional right to talk politics in the workplace. However, the First Amendment to the U.S. Constitution (i.e., the right to “freedom of speech”) only applies to actions by the government, not private employers. As such, as a general rule, private employers are free to prohibit political discussions in the workplace. However, this general rule may be trumped (no pun intended) by the National Labor Relations Act (“NLRA”). The NLRA applies to both unionized and non-unionized employers and protects the rights of employees to engage in concerted activity (e.g., to discuss the terms and conditions of employment). Therefore, under the NLRA, an employee may have a right to talk about a candidate’s policies as they relate to minimum wage or overtime laws.

Additionally, given some of the “hot button” issues in the current presidential election, political speech may result in employee claims of harassment and discrimination. For example, a hostile work environment could arise if employees are subjected to unwelcome discussions on immigration, equal pay for women or abortion rights. Conversely, disciplining the employee who discusses such political issues could result in a claim of retaliation (e.g., a woman discussing equal pay legislation could argue she was disciplined in retaliation for her speaking out on discriminatory pay policies).

Employers should insure that all policies and actions relating to political speech are compliant with applicable law. Further, employers in New York are reminded that they are obligated under certain circumstances to provide employees with paid time off to vote. New Jersey has no such law; however, it a crime in New Jersey for an employer to intimidate, threaten, or use violence to induce, compel or coerce any employee to vote for a particular candidate.

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