As another presidential election quickly approaches, the intensity of political discourse will inevitably increase in the workplace, posing unique challenges for employers seeking to maintain a respectful and productive work environment. To help employers navigate this dynamic period, here are some important legal considerations and best practices to address political discussions in your organization. Be mindful that state law may offer employees additional protections.

Question: What rights do private employers have?

Answer: While the US Constitution protects the right to free speech, including political speech, this protection generally applies only to public employers. In the workplace, private employers enjoy more leeway to regulate employee speech and conduct. Policy should prohibit discussion of or the internal circulation of political content not relevant to work.

Question: Does the National Labor Relations Act (NLRA) apply?

Answer: One notable federal law that may govern political speech in private workplaces is the National Labor Relations Act (NLRA). While commonly associated with union-based activities, the NLRA can protect a private employee’s rights. Often times, this can involve topics and issues that are political in nature. An example may include if a group of employees is unhappy with their pay and discuss how a particular political candidate’s platform may include a push for higher wages or better benefits. Such discussions would likely be a concerted activity under the NLRA, thus prohibiting an employer from taking action against those participating. Another popular example may be if a private employer typically receives government funding. Any discussions or action taken by a group of employees to support a candidate who publicly supports government subsidization of the industry under which the employer falls are likely also given protection.

Question: Does the NLRA protect social media activity?

Answer: In the current world, social media is an extension of an individual. Social media platforms are used daily to connect with friends, share news, and ultimately, share opinions. So, when an employee leaves work, goes home, and posts political opinions online, is this speech protected? Not always. If a political opinion shared by an employee harasses or deeply offends a coworker or otherwise causes a rift in workplace harmony, an employer may be able to take action against the author of the post. Employers should establish a social media policy that encourages employees to feel confident they can share opinions through social media while also keeping them informed of lines they cannot cross, both at home and in the office.

Many of the issues surrounding politics in the workplace are situation-specific and we welcome the opportunity to provide recommendations. We have prepared a White Paper with more detailed information; retainer clients may request a copy by contacting us as noted below.