In a highly charged election season, employers may encounter workplace challenges related to politics. Some employers are unsure whether they must give time off for employees to vote. Many report an increase in political discussion among employees and are concerned about its impact on their company’s culture and productivity. Employers should expect the upcoming election to be a topic among their employees, and they must be ready to address conflicts and questions.

First, there are state laws that employers must follow concerning elections:

• Employers are prohibited from attempting to influence employees’ votes under G.L. c 56, § 33. The statute prohibits tactics to induce employees to vote a certain way and employers should avoid even subtle messaging to their employees as it may be perceived as a threat that could impact the terms and conditions of employment.
• Massachusetts employees may request time off to vote under G.L. c 149, § 178. This law was enacted in 1887, long before today’s extended polling hours and mail-in ballots. Employees must request the time off in advance, and it can be unpaid.

Managing Political Expression in the Workplace

Employers should be mindful of political discussions that might disrupt operations. They should also be aware that the constitutional protection of free speech found in the Bill of Rights restricts state action against an individual by the government and generally does not extend to private employers and the management of the workforce.

A caveat to that rule, however, is that employers must comply with the National Labor Relations Act (NLRA), which protects workers’ rights (union and non-union) to engage in concerted activities or other mutual aid or protection.  Therefore, political speech related to employment terms and conditions of employment is protected by the NLRA.  Discussion of other election issues is not.

Addressing Political Speech and Anti-Discrimination Laws

Employers who wish to discipline employees for political expression in the workplace must also be mindful of anti-discrimination laws. If a policy is not enforced consistently, employees might conclude that discipline is being applied discriminatorily. A few approaches to managing political expression in the workplace include:

• Dress Code Policies: The employer’s dress code may be used to forbid wearing T-shirts supporting a candidate.
• Code of Conduct: A code-of-conduct policy may prohibit a wide range of behaviors, including speech that may be offensive to others.
• No-Solicitation Policies: A no-solicitation policy may be enforced to preclude employees from distributing political literature in the workplace. Again, consistent enforcement of such policies is essential; it cannot be based on the content of the political expression.

Consistent policy enforcement is crucial and should be content-neutral.

Challenges with Political Expression Outside of Work

Some political expression is more difficult to address.  For example, an employee may report that she finds a co-worker’s truck plastered with campaign stickers offensive.  Unless the company owns the vehicle, used for work, and it is parked on company property, there is little that the company can do.  If the vehicle is connected in any of these ways to the employer, the employer may ask the employee to remove the bumper stickers or discipline the employee. It is a good idea to reach out to an employment attorney before doing so to ensure compliance with the NLRA and other laws.

Social Media Considerations

Issues may also arise with employees’ social-media activity. If an employee uses a personal account to promote political views without representing their employer, disciplinary action may not be warranted. However, if the message contains vulgarity, threats, or material that reflects poorly on the company, the employer may have recourse to discipline the employee.  As always, the employer should enforce its policies consistently and without regard to political leanings and must keep the NLRA’s protection in mind. Before taking action against an employee for social-media posts (political or otherwise), the employer should consult with an employment attorney.

Employer Advocacy and Legal Risks

Finally, an employer that supports a political candidate or stance on an issue must exercise caution in its messaging to comply with M.G.L c 56, § 33. Some states have so-called “captive audience” laws banning meetings to promote a political cause. While Massachusetts does not have such a law, the General Counsel of the National Labor Relations Board has strongly advocated making such meetings unlawful. Even subtle advocacy can create compliance issues and affect employee relations.

AIM members with questions about the impact of politics on their workplaces or about any other HR matter may call the AIM Helpline at 800-470-6277 or email helpline@aimnet.org.