Employers and human resource professionals find themselves increasingly dealing with workplace strife caused by political and societal differences. When society is polarized on politics, so too are employees. Many employers report that employees are wearing face masks to work with political messages or posting pictures in their workspaces that convey political ideals. In addition, employees are having heated conversations at work and wondering where to draw the line on those conversations. Now more than ever, employers must be vigilant to maintain a healthy workplace climate while avoiding legal liability. The 2020 election provides an excellent opportunity for employers to communicate the need to respect differences in thought and political persuasion. So often, employees are keenly aware of which political party an employer or its decision-makers support. Additionally, the 2020 election requires employers to communicate affirmatively with its employee population rather than waiting for problems to arise, and to clearly explain the company’s position on political discourse at work. The Society for Human Resource Management (SHRM) published poll results from last October, finding workplace discussions about politics have increased over the last four years. SHRM’s poll indicated “42 percent of employees had a ‘political disagreement’ at work and 12 percent have experienced political affiliation bias.”
Many employees believe their constitutional rights permit them to engage in political discussion they feel is necessary while at work. While political expression is a protected First Amendment right, including the right to protest and to vote, employees in the private sector have no constitutional rights to free speech that interferes with the workplace. Some states protect the exercise of political expression and prohibit any adverse employment actions taken on the exercise of those rights, including South Carolina. But employers are free to ensure that their workplace is not disrupted by the expression of political views. Further, First Amendment and other statutory rights regarding political expression do not permit employees to engage in heated political discussions that violate other company policies, such as standards of conduct (disrupting the workplace, aggressive or threatening behavior), or anti-discrimination and anti-harassment.
Employers should note that these prohibitions apply to conduct off duty, including on social media. Social media often presents complex problems and employers should be careful about taking adverse action against employees based upon social media posts. Social media posts and other political views can sometimes implicate Section 7 of the National Labor Relations Act, which provides for protections for employees who engage in collective action around the terms and conditions of their employment.
An employer may not take any employment action against employees who exercise their First Amendment rights of expression on personal social media. Human Resource professionals must ensure managers and other employees do not treat other employees differently because of their political or societal views.
Employers should implement policies addressing civil discord, explaining the difference between appropriate political expression and inappropriate political expression, and providing examples of each. Providing employees with the tools needed to express themselves in respectful ways is integral to any successful DEI training. Employer-sponsored forums with employees, where employees are encouraged to engage in healthy and respectful discussion, to include politics, serve to provide employees with an employer-sanctioned venue for open communications. Chris Gantt-Sorenson and Perry MacLennan explore these ideas in a recent Survive HR podcast, “Politics and Work…dangerous combination!,” available here.
If you have questions about this topic or other employment law matters, please contact Chris, Perry, or the HSB Employment Law practice team.