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Bar News - May 4, 2007


Employers Advised to Restrict Political Expression at Work

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As the 2008 presidential campaign heats up, so may tempers on the job. Employers might find that some employees are spending large amounts of time in the workplace talking about politics or visiting political Web sites such as Fantasy Congress (http://www.fantasycongress.us/).

 

Many people wrongly assume the US Constitution and the Bill of Rights entitle them to express their political views whenever and wherever they wish, according to attorneys with Littler Mendelson, the nation’s largest employment and labor law firm. In fact, workers at private-sector companies that are employed at will, can be terminated for their political beliefs as long as their dismissal complies with employment statutes and does not run afoul of other state-law guarantees.

 

“The Bill of Rights, including the First Amendment’s protections of free speech, does not apply directly to private-sector entities,” said Peter Susser, a partner in Littler Mendelson’s Washington DC office. “Tension and conflict often result when employees lack direction and are confused about what they can and cannot say and do.”

 

Private-Sector Employers

 

Employers have the right and responsibility to ensure that work environments are safe, free of hostility, and conducive to productivity. That includes protecting their employees from being badgered or pressured by overzealous political advocates. In many cases, employers have the legal right to limit or prohibit political expression during work hours. Even in states with laws protecting political expression, employers still retain broad powers to restrict workday activities to business pursuits.

 

Susser said private employers can:

  • Limit employee political activities that have an impact on the workplace by implementing rules prohibiting various activities, like political campaigning during business hours.
  • Enforce general, uniform rules about employees’ personal appearance or work-area décor—making sure all employees are treated equally. For example, retail workers who come into contact with customers can be prohibited from wearing political campaign tee shirts or buttons.
  • Adopt and enforce “no-solicitation/no-distribution” rules, which limit soliciting support for and distributing literature about various types of non-work activities, ensuring that they are applied to political campaigning. The rules should be applied in a uniform and even-handed way, but should not be so overbroad as to prohibit protected activities, such as the right of workers to discuss union-related issues on non-work time in non-work areas.
  • Adopt and enforce policies dealing with workplace technology, including the restriction of e-mail to work-related activities. In this way, employers can declare political campaigning using company e-mail to be off limits.

 

Susser advises employers to seek legal counsel to draw up appropriate work rules.

 

“Employers are allowed to adopt these practices in the interest of their company’s efficiency and to keep employees focused on the job,” Susser said. “To ensure prudence, it’s typically best to keep politics out of the workplace during business hours.”

 

Public-Sector Employers

 

For public-sector companies, government employees do have certain rights to political expression on the job because the US Constitution and Bill of Rights relate to actions by the government, including those taken in the role of “employer.” Even in such settings, however, there are statutes and regulations that may limit political activities of public employees, both on the job and—in some cases—off-the-job.

Lisa Bachner is the regional marketing manager for the San Fransisco-based law firm of Littler Mendelson. The firm has 500 attorneys and 38 offices nationwide and exclusively represents management in employment, employee benefits, and labor law matters.

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