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This past year employers in the United States have seen an increase in workplace political discourse as they try to balance offering freedom of expression, avoiding workplace division, and complying with state and federal laws. This guide highlights the laws that could be implicated with workplace political speech, and offers tips on minimising liability.
Laws implicated by political expression
1. Labour laws
The National Labor Relations Act (NLRA) protects the right of employees to act collectively to improve their employment conditions. Employees’ political expression might implicate labour rights if their expression is a collective effort to address working conditions.
In recent cases, employees argued that supporting the Black Lives Matter (BLM) movement constituted an NLRA-protected activity. The outcome of these cases largely depended on individual facts and circumstances. Just last November, the Eighth Circuit Court of Appeals found that, based on a narrow “special circumstances” defence, Home Depot didn’t violate the NLRA by banning BLM messaging on employee aprons.
2. Anti-discrimination laws
Anti-discrimination laws protect employees from adverse employment actions based on protected categories. Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, sex, and religion, which are often political topics. Accordingly, employers’ reactions to political speech might be considered a reaction to an employee’s protected class, leading the employee to believe they were treated unfairly because of their protected class.
3. State laws
Unique state laws also may apply to employees. For example, South Carolina employers cannot discharge employees for their political views. North Carolina has a comparable law that applies only to public employees.
Proactive Steps
1. Determine tolerance
Employers may prefer to be more tolerant in allowing free expression of political opinions, which could lead to dissension. However, a lower tolerance might foster employee dissatisfaction. Regardless, discriminatory political expression should be prohibited in the workplace.
2. Revise policies
Equal employment opportunity and anti-discrimination policies, solicitation and distribution policies, workplace conduct policies, dress code policies, and social media policies could all implicate political expression. Such policies should be consistent with the employer’s tolerance for political expression.
3. Train employees
Employees – and supervisors, in particular – must be trained to handle tense interactions and complaints resulting from political discussions, and to enforce policies consistently among all employees.
Employers should consult with counsel for guidance on offering a work environment that allows for political expression while complying with state and federal laws. Please contact the Brooks Pierce labour and employment team with questions on how to handle workplace political expression.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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