Bar News - April 19, 2017
Labor & Employment Law: Political Discussions at Work: Examining Rights and Regulations
By: Terri L. Pastori
We are on the heels of a Presidential election that divided our country, and we all know workplaces are not insulated from political discussions. Controversy surrounds some of the new administration’s agenda items, and political discussion continues around kitchen tables, cubicles, breakrooms, and the digital watercoolers of social media.
When politics surface in private workplaces, it has the potential to disrupt productivity, affect morale, and impact working relationships. There are news reports of employers taking political stands, and allegedly firing employees for their political affiliations or political speech. Workplace protection for employees based upon their political affiliations and political speech is a complex issue requiring an analysis of federal and state law, and depends, in part, on whether an employer is public or private. Before an employer takes any adverse action against an employee for political affiliation or political speech, it would be wise to first consider the various intersections of these laws and the protections they may offer employees, and then proceed with caution. This article focuses on the private workplace.
The standard analytical framework for employment terminations is not readily applicable when political conduct is involved. On one hand, employees, unless under contract, are employees at-will who can be fired, with or without notice, for nearly any reason, or no reason at all, so long as the termination is not contrary to law or public policy.
Political affiliation is not a protected class recognized under the traditional anti-discrimination laws that protect employees from unlawful discrimination, harassment, and retaliation based on, for example, race, color, religion, sex, age, and disability. For private employers, who are not government actors, firing an employee for his or her political affiliation or political speech does not necessarily implicate free-speech rights under the First Amendment.
That said, statements that concern politics may also relate to issues involving protected-class status, or protected communications about the terms and conditions of the workplace, and as a result, may trigger certain employee rights.
To illustrate, consider a discussion in the workplace about the merits of President Donald Trump’s recent executive order on immigration, during which an employee tells his coworkers that he supports the order and then proceeds to make disparaging remarks about members of certain religions. One of the coworkers, who is a member of one of the religions discussed, complains to human resources that he is being subjected to a hostile-work environment on account of his religious beliefs. The original employee’s statements, although communicated as part of a political discussion, may implicate prohibitions under federal and state law against discrimination and harassment on the basis of religion. Upon receipt of such a complaint, the employer must conduct a prompt, neutral, and thorough investigation of the allegations, and if the investigator concludes that the allegations are founded, the employer must take appropriate remedial action geared to eliminating the inappropriate conduct.
Also relevant are various federal and state laws that protect certain political activity. Federal law, for example, prohibits interference with voting rights in federal elections, in accordance with U.S. Code Chapter 18 Section 594. The National Labor Relations Act (NLRA) restricts an employer’s right to limit or interfere with non-supervisory employees’ communications about wages, hours, and “other terms and conditions” of their employment. The general counsel for the National Labor Relations Board (NLRB), the federal agency that enforces the NLRA, has taken the position that employers may not interfere with political speech where there is a direct nexus between the speech and employee-working conditions. As such, political speech and conduct may constitute protected activities in the workplace to the extent that they implicate an employee’s terms and conditions of employment. As a practical matter, there may be a relationship between politics and many workplace conditions, including healthcare, immigration, minimum wage, transgender rights, and right-to-work legislation.
In addition to federal protections, some states and local governments have laws and regulations that directly or indirectly address politics in the workplace. For example, some states require that employers allow employees time off from work to vote, and some further require that employers pay employees for that time off. Some states outright prohibit employers from attempting to influence employee’s votes with employment actions, whether adverse or favorable, and others prohibit discrimination because of political activities and affiliations.
New Hampshire law does not require employers to give employees time off from work to vote. It does, however, prohibit direct and indirect bribes in exchange for votes and coercion or intimidation used to knowingly induce or compel any person to vote in a particular manner and makes such conduct a crime (see RSA 659:40). While there is no New Hampshire law that expressly addresses political conduct in the private workplace, it would not be farfetched for an employee to argue that certain conduct at work violates New Hampshire law.
For multistate employers, different rules may apply in different states, and employers should take care to comply with all applicable laws. Employers should also be aware that the conduct of their managers and supervisors, as agents of the employer, may be imputed to the employer.
There are steps that employers can take to balance the competing interests of maintaining a productive workplace while also allowing employees to engage in political discourse without retribution.
A complete ban on political discussion is illegal under the NLRA, and may also violate state laws. If employers have policies that address purely political activities in the workplace that comply with federal and state laws, they should uniformly and consistently enforce them. Employers should also regularly disseminate polices concerning expectations for the workplace behavior of employees, keeping in mind the NLRB’s position that employers cannot interfere with employees’ ability to discuss topics that relate to the terms and conditions of the workplace, and that sometimes those discussions may not necessarily be “respectful” or “polite.” Such policies also should reinforce that they are not intended to prevent or discourage employees from discussing their working conditions or engaging in other concerted activities protected by law.
Although employees do not have a constitutionally-protected right to freedom of speech in the private workplace, employers face the possibility of opening a “can of worms” when employee conduct involves political speech or activity. Private employers would be wise to proceed carefully in assessing the intersection of the political affiliation and speech issues that can arise in the context of employee discipline.
The line between political speech, speech that is protected as a communication about the terms and conditions of employment between non-supervisory workers, and speech and conduct that violates other laws is not always clear. To complicate matters further, federal agencies tend to be in flux, and agency positions are subject to change. Before disciplining an employee for conduct that involves political speech, employers and their counsel first should determine if the conduct is either protected or prohibited by federal, state, or local law, consider whether the conduct impacts workplace expectations and standards (e.g. productivity), and assess whether the conduct is governed by any enforceable workplace policies.
Terri L. Pastori
Terri L. Pastori is a founding member of Pastori | Krans in Concord, NH. She counsels and represents employers and employees in all aspects of their employment relationships in New Hampshire and Massachusetts, and she can be reached by email or at (603) 369-4769.