By John Balitis
The 2016 election is almost here, and political debate is probably in full gear at many workplaces across the nation. It can be difficult to gauge how much an employer may regulate political speech, and therefore it’s important that managers are trained on how to handle it. To help, today we present an article by John Balitis, chair of the Employment and Labor Relations Practice Group at Fennemore Craig.
A private employer generally is free to regulate political speech in the workplace unless the employer operates in a state or city that specifically protects employees against discrimination because of political expression, or the employer is a party to a collective bargaining agreement that includes the same protection.
There is no federal law that specifically protects employees from discrimination or retaliation because of their political activities, affiliations, or statements. And the First Amendment largely is inapplicable in the private sector as it only protects a person’s right to free speech from government interference, not from interference by anyone else.
What Should Employers Avoid in Regulating Political Talk in the Workplace?
As with most rules, exceptions greatly qualify the proposition that private employers are free to regulate political speech at work. For example, many employers are prohibited under Title VII of the Civil Rights Act, the Americans with Disabilities Act, and a number of other federal and state laws from discriminating, retaliating against, and harassing workers based on certain characteristics.
Some of these characteristics—like race, national origin, sex, and religion—may be intertwined with various political issues, including affirmative action, abortion, prayer in schools, and immigration. Employers should be careful that their discussions of candidates or issues do not suggest that they will treat an employee adversely based on his or her views or opinions, which may be related to a protected characteristic. Similarly, employers need to be vigilant to ensure that disagreements among coworkers do not rise to the level of harassment while implicating these protected areas.
In tomorrow’s Advisor, Balitis discusses more about how employers should handle political speech in the workplace, including considerations under the federal National Labor Relations Act (NLRA) and how to minimize friction between employees.