Human Resources

Political Speech at Work: Consider the NLRA, Minimize Friction

By John Balitis

In yesterday’s Advisor, John Balitis, chair of the Employment and Labor Relations Practice Group at Fennemore Craig, began a discussion of how employers should approach political speech in the workplace. Today Balitis discusses more considerations under the National Labor Relations Act (NLRA) and how to minimize friction between employees in a volatile election year.

Taking the NLRA into Consideration

Another consideration to take into account is the National Labor Relations Act (NLRA). This statute applies to virtually all private employers and, in certain situations, protects politically charged speech.

Section 7 of the NLRA gives employees the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” This provision covers not only interactions between an employer and employee, but it also covers efforts by nonsupervisory employees to “improve their lot as employees through channels outside the immediate employee-employer relationship.”

As a result, the NLRA protects certain concerted actions and communications by employees relating to changes to conditions in a workplace. With political hot-button topics such as minimum wage, immigration, transgender accommodations, and so on, politics and workplace conditions can often run hand in hand.

In fact, the General Counsel of the National Labor Relations Board (NLRB) has concluded that an employer may not interfere with political speech where there is a “direct nexus between employment-related concerns and the specific issues that are the subject of the advocacy.”

The NLRB has been very active in enforcing employees’ rights to engage in protected, concerted activity online. Employers need to take care not to violate these emerging employee rights. The Board also pays close attention to employer restrictions on employees’ use of social media during and after work hours.

Employers should take caution to ensure that social media rules and practices are applied fairly and consistently throughout the election season. A good first step for most employers is to create and implement an electronic communications policy that addresses charged political speech online, while at the same time making clear that it is not meant to infringe on protected, concerted activity.

In a Volatile Election Year Like This One, What Can Employers Do to Keep Workplace Friction to a Minimum?

There are many steps employers can take to address political expression in the workplace, while at the same time maintaining morale and avoiding running afoul of laws that may be implicated to one extent or another. Do not engage in inappropriate commentary or jokes about political views. These can make certain employees feel singled out.

Remind employees of your harassment, discrimination, and equal employment opportunity policies, and retrain employees on them if necessary. If you do not have one, consider adding a company “Code of Conduct.” It should outline your expectations that all employees will treat each other with respect despite differences in opinion.

Thoroughly and quickly investigate any allegation of bullying or harassment. Before disciplining an employee for political expression, check to see if the political expression is protected, concerted activity, if the manner of expression is protected, and whether your policies, as previously applied, allow you to discipline the employee.

Consider amending your dress code policies to cover political apparel. Deal with any productivity issues created by political discussions rather than the specific content underlying the speech, and make sure you are consistently applying these standards.

Always check with counsel before implementing any policy that curbs political speech or before taking adverse action against an employee because of his or her political expression.