Question

As we get closer to the November election, some of our employees are talking about politics in the workplace. It’s getting to be disruptive to the operation. May we ban employees from talking about politics at work?

Answer

It depends. Private employers may generally prohibit certain types of speech that a public employer may not but there’s more to it than that.

While private-sector employers have the authority to ban some speech in the workplace, the debate on when an employer may or should do so often centers on balancing the scope of company policies that restrict political speech pwith the need to maintain a workplace that is harmonious and free of hostility.

Sources of confusion

Employees do not have a constitutional right to free speech at work. The First Amendment freedom-of-speech provision does not apply to private actors such as private employers.

Instead, it places limits on the ability of the federal government to restrict their speech under certain circumstances. The same rules apply to state and local governments. In the absence of other state or federal laws to the contrary, private employers are free to regulate their employees’ speech as they see fit.

Employers can and should impose discipline for conversations that could potentially lead to complaints about harassment, discrimination, workplace safety violations and other issues.  Political discussions can sometimes lead to a hostile work environment, and employers should have policies that allow them impose discipline when conversation becomes too heated.

National Labor Relations Act exception

Employers are generally unable to prohibit speech related to terms and conditions of employment or employees’ desire to act together for their “mutual aid and protection” as authorized in section 7 of the National Labor Relations Act (NLRA).  Section 7 specifically protects the ability of unionized and non-unionized, non-supervisory employees in the private sector to “engage in … concerted activities for the purpose of … mutual aid or protection.” And, obviously, that concerted activity may include conversation between employees.

Once it becomes involved, the National Labor Relations Board (NLRB) will scrutinize an employer policy that it believes may violate section 7. For the most part, employers may not limit conversations relating to working conditions, even if the conversations are relayed in terms of current events or politics.

Whether an employer’s policy violates the NLRA depends on:

• whether and to what extent it interferes with the ability of employees to exercise their rights under the NLRA, and
• whether the employer has any legitimate business justifications for adopting the policy.

Policies that are considered permissible are ones that do not prevent employees from exercising any of their rights under the NLRA. Examples include policies prohibiting illegal forms of speech like defamation or fraud, which are not protected by the Act.

In contrast, policies that are considered impermissible are those that frequently or always prevent employees from exercising their rights under the NLRA. Examples include policies prohibiting employees from discussing their wages, benefits, or working conditions with other employees.

Social Media

An employee’s posts on social media may be considered protected concerted activity if the employee is discussing working conditions and other labor-relations matters. In recent years, the NLRB and courts have found that social media posts might be protected even if they contain profanities or appear disloyal to the business.

Beyond the NLRA

Even more challenging, employers need to make sure that they do not adopt policies that adversely affect a class of people in the workplace. For example, an employer might enact a policy prohibiting employees from wearing certain branded clothing, but if that policy only affects workers of a protected class, it may be found to be discriminatory.

Massachusetts law

Massachusetts has a law prohibiting anyone from attempting to coerce an employee into a political activity.  Mass. Gen. Laws ch. 56, § 33 provides penalties of up to $1000 in fines and 6 months in prison for an employer who rewards or punishes employees for supporting certain political candidates and positions.

With these considerations in mind, employers generally have the power that they need to regulate employees who need to be regulated – those who are engaging in illegal or prohibited speech and those who are violating legitimate business policies. That makes the real question when should the employer exercise this policy right?

Before taking any disciplinary action based upon its policy the company should thoroughly investigate the incident to determine whether it was violation of company policy or was protected speech. Once that determination has been made, the company may impose what it believes to be appropriate disciplinary action.

Final thoughts

Politics in the workplace can create a minefield for employers, supervisors and coworkers, and can negatively affect the work environment.  Employers should carefully review their policies (EEOC, ADA, antiharassment, etc.) to make sure that they are attempting to promote harmony and stability in the workplace.

AIM members interested in discussing this or any other human resource question may call the AIM Employer Hotline at 800-470-6277.