Karin Sweigart, a Senior Associate at The Volkov Law Group, rejoins us for a posting on employees and political activity.  Karin can be reached at [email protected].

It is October in an election year, and political tensions are running high. If political discourse in your place of business has been heated, it may be a good time for a refresher on laws governing what private employers may or may not do with regards to the political speech and activity of their employees.

What Doesn’t Matter

First and foremost, employees of a private business have no First Amendment right to free speech in their workplace. Private employers are not governed by the Free Speech clause of the First Amendment which states, “Congress shall make no law . . . abridging the freedom of speech.” As a private employer, limitations you put on the activity of your employees, by definition, cannot run afoul of the First Amendment.

Additionally, private employees have no general anti-discrimination protection for political activities or beliefs in federal law. While private employees’ protections in federal law preventing discrimination on the basis of race, color, religion, sex, or national origin may sometimes be raised in the course of political discourse, there is no specific federal prohibition on discriminating based on political beliefs, activities, or affiliation – the one caveat being protections in the National Labor Relations Act generally associated with union organizing. See Employee Rights – NLRB.

What Could Matter

State and local laws vary widely when it comes to anti-discrimination prohibitions and political speech and activities. The following list is by no means exhaustive, but is instead intended to provide a sample of some of the ways states and localities have attempted to address this issue.

Political Affiliation Discrimination

California law broadly prohibits any employer from enforcing any rule or policy forbidding or preventing employees from engaging in politics, or controlling the political activities or affiliations of employees. See California Labor Code Sections 1101-02.  Washington D.C. similarly prohibits discrimination based on political affiliation. See D.C. Code Ann. § 2-1402, et. seq.

Political Activity Discrimination

New York prohibits discrimination based on political activity outside of work hours. N.Y. Lab. Law § 201-d(2).

Lawful Conduct Discrimination

Colorado, North Dakota, and Utah generally prohibit employers from discriminating against an employee for lawful activity off the employer’s premises during nonworking hours. See C.R.S. § 24-34-402.5;  N.D. CENT. CODE ANN. § 14-02.4-08; Utah Code § 34A-5-112. Somewhat similar in its application, Montana generally bars employers from firing an employee absent good cause – which would include a dismissal based on lawful political activity. See MONT. CODE ANN. § 39-2-903(5)-04.

In addition to state law, many local governments have adopted anti-discrimination policies that could impact your business. Consult legal counsel to determine what additional restrictions you may face in your jurisdiction.

What can my business do?

Subject to state law and the federal protections for union activity under the NLRA, there are some general rules private employers may implement to limit political strife at the workplace. The main principle any employer should keep in mind when drafting and enforcing these policies is that any restriction should apply to all ideologies and not appear to favor or disfavor one political ideology over another. Here are a few policies your business may want to discuss with legal counsel to see if they are appropriate to introduce.

1. Prohibit use of company resources for partisan political activities.

Implement a policy that company resources including computers, work cell phones, office telephones, company e-mail, office supplies, office equipment, and employee time during working hours are not to be used for any form of partisan political activity.

2. Have a general policy prohibiting political materials in the workplace.

Prohibiting all campaign paraphernalia including buttons, posters, hats, and other clothing may be helpful in your workplace. However, managers should be directed to evenly and strictly enforce the prohibition.

3. Company media policy

Set in place safeguards to ensure that your company’s corporate media presence is free from unwanted political messages. Require a two-tiered review system before any blogs or twitter messages are posted under the company name. Also place strong password restrictions to limit access these corporate accounts.

4. Corporate reputation

State clearly in your policies who is exclusively authorized to speak with reporters on behalf of the company. Additionally, remind your employees any activities or communication undertaken during non-working hours should not be undertaken on behalf of the company or in their capacity as an employee of the company.

Whatever your business may need to provide a productive work environment during times of political strife, always consult competent counsel to ensure your policies are neutral and don’t unknowingly run afoul of the law. Additionally, managers need to be trained to spot potential problems and address them immediately and fairly regardless of political affiliation. The best time to put policies in place is not in the throes of a political firestorm. Consider looking for a lull in the political rhetoric to introduce your new policies and train your employees accordingly.