Read part three where we looked at employee use of social media to engage in political speech.
Recommended Practices
Employers may restrict political speech and activities that occur during work hours so long as the restrictions account for the exceptions imposed by federal, state, and local laws.
Workplace Politics and Social Media Policies
Any rule or policy on workplace politics must account for activities and communications protected by the NLRA or applicable state and local laws. Employers should craft and implement effective policies and rules related to legitimate employer interests that reduce any ambiguity over what political activity or expressions are covered.
Employers may want to discourage supervisors from having political discussions with subordinates to minimize potential claims of discrimination, harassment or bullying. As noted above, supervisors are not protected by the NLRA. However, any such policy also must be tailored to comply with applicable state law.
Employers should seriously consider implementing a social media policy.
Employers should consult with experienced labor counsel regarding compliance with the NLRB’s stringent Stericycle decision on employer policies and rules.
Communication Regarding Policies
Employers should remind employees about any policies and rules covering anti-discrimination, harassment, retaliation, social media, voting leave, and any other related areas. Employers should first review these policies to ensure they account for the evolving legal landscape.
Consistent Application of Policies and Investigations
Importantly, employers should apply all policies and rules in a consistent, uniform, and non-discriminatory manner. Likewise, if an investigation is needed, the investigation must be conducted thoroughly and impartially.
Training
Employers should also consider training to ensure any policies are effective and known by all employees. It is especially important to train managers and supervisors on lawful policies and rules related to political activity.
Training for managers and supervisors should also be geared towards a general awareness of the pitfalls of limiting political speech and the potential risks for liability under EEO laws and the NLRA.
Notably, employers may want train managers on how to identify politically charged conversations and address them appropriately.
Have a Gameplan
Employers should be prepared to promptly and effectively address any violent, substantially disruptive, unlawful, and other political communications and activities.
Employers should also consider making dispute resolution procedures available to employees who may feel uncomfortable by political activities in the workplace.
At a minimum, employers may want to designate an HR or legal contact for employees to contact for any concerns. If a matter appears to have spiraled out of control, employers should consider communicating with counsel, both internal and external, to minimize and hopefully avoid reputational risks to the company’s brand. In doing so, employers should have an action plan of what to do and what resources to activate if brand reputation is at risk.
Finally, employers should also be prepared for employees to take the leave time afforded under applicable state and local laws to vote or otherwise participate in the upcoming election.
Awareness of State and Local Laws
As detailed above, it is critical that employers be mindful that states and local jurisdictions often provide greater protections for employees. For example, some states’ laws may extend First Amendment-type protection to private employees.
Additionally, employers should be aware of the differences between federal EEO laws and state EEO laws.
Conclusion
Ultimately, a carefully crafted and uniformly enforced policy that limits certain political activities and political speech can help increase worker productivity, lower the risk of employee claims, and contribute to a better workplace.
However, even where the employer has legal grounds to take adverse action against an employee, it should compare the benefits of doing so with the risks inherent in appearing to suppress the employee’s free speech.
At the end of the day, employers should be particularly aware of employees’ rights and limits on employee rights related to political speech and activities in the workplace and be prepared to act proactively to mitigate issues before they arise.
Questions?
Do you have concerns about dealing with politics in the workplace? Contact us and let our Minnesota HR and legal experts help!
