One of your employees reports a coworker for expressing extreme political views on social media. An employee frequently arrives at work wearing hats and shirts supporting a controversial candidate for office. A notice is posted on your breakroom bulletin board inviting employees to a rally in support of a position on a hot button issue. What should you do? What can you do?
Your employees may tell you that they have the right to freedom of speech. Freedom of speech, according to the United States Constitution, means that the government cannot make laws restricting its citizens’ political speech or expression. It does not mean that employers have to tolerate an employee’s speech, dress, or conduct in the workplace regardless of the circumstances.
However, there are some types of speech or expression that employers may not prohibit. Section 7 of the National Labor Relations Act protects employees who engage in concerted activity for mutual aid. This includes attempts to unionize, complaining to other employees about working conditions in an attempt to effect change, or discussing their own wages or terms of employment. An employee posting a complaint on social media about what he believes to be an unfair labor practice and a fellow employee “liking” that post is concerted activity and cannot be prohibited, even if the employer feels that the complaint is unfounded or unflattering to the employer.
Six states and the District of Columbia have laws specifically prohibiting employers from taking adverse action against employees based on their political views, activities, or affiliations. Employers in these states may be found noncompliant with state law if they were to terminate employees who supported an unpopular candidate or party on social media, for example. Employees who attended a political rally off premises during nonworking hours could not be disciplined in these states, even if the employer and its other employees strongly disagreed with the political views espoused by the participants at the rally.
But what about our nondiscrimination and anti-harassment policies? Even in states that prohibit discrimination based on political affiliation, you should not tolerate hate speech, harassment, or discrimination in the workplace. Discriminatory views against protected class members are not the same as political affiliations. Protecting your employees from discrimination and harassment should be a top priority, and protected class members should not be required to work alongside employees affiliated with a group that espouses hatred against a protected class, even if the employee engaging in overt or covert harassment or discrimination claims that his or her discriminatory views are politically motivated.
So can you ban political flyers from your bulletin boards and enact a dress code banning baseball caps? Of course. Can you allow flyers and caps that support one political party and discipline or terminate employees who attempt to post flyers or wear clothing in support of the opposing party? Probably not in states that have laws protecting employees based on political affiliation. Make sure that any policies regarding dress codes, social media, and distribution of literature are enforced uniformly with regard to all employees, and do not single out employees based on the popularity of their political views. Permit employees to broadcast their political views on social media, even if those views do not align with those of your company owners or the majority of employees (provided these posts do not violate your company policy against harassment and discrimination). Be aware of protected speech under section 7 of the NLRA. And consult with the experienced attorneys at myHRcounsel for help navigating the intersection of workplace policies and employees’ political views.