“No politics or religion at the dinner table,” says the old adage. How about around the water cooler at work? With the onset of presidential debates and the upcoming 2016 election, what rules apply if you want to wear your Donald Trump “Make America Great Again!” button to the next staff meeting?
Campaign Speech in Private Workplaces
The First Amendment to the United States Constitution provides that Congress will enact no law “abridging the freedom of speech.” While freedom of speech is one of the rights that we as American citizens hold most dear, this guarantee only applies to governmental action. So, if you’re a government employee or working for a federal contractor, your free speech rights (and rights to rock that Kanye 2020 sticker on the wall of your cubicle) at work are going to be different than those of an employee working for a private employer.
Generally, private employers can limit or restrict entirely political speech at work. There are several good reasons that an employer would want to have such a policy. First, heated political discussions could have an impact on employee productivity. All that time debating last night’s debate might take you away from the work you are being paid to do. Second, sometimes political talk bleeds into discussions about topics like gender or religion or other areas where an employee could start to feel harassed or discriminated against. Harassment and discrimination is against the law, government employee or not.
The National Labor Relations Act
There is a giant caveat here and that would be the National Labor Relations Act (NLRA.) Most people think the NLRA only applies in unionized workplaces, but that isn’t the case. Section 7 of the NLRA provides protections for all employees regardless of union status. If the political speech is related to wages, hours, or working conditions, then an employer is not allowed to curtail that activity in non-work areas during non-work times.
So if you’re talking over lunch in the break room about a particular candidate’s stand on the minimum wage, or you’re debating with Joan from accounting over the work safety impact of a server farm supported by another candidate, your conversation is most likely protected and you can’t be disciplined for it, regardless of your employer’s policy.
A lot comes down to individual employer policies and how those policies are, and have been, enforced. Most employers have solicitation and distribution policies that limit how and when you can hit up your co-workers for donations to your particular cause or post flyers about the fundraiser for your daughter’s little league team. Communications and social media policies might impact what you can say to the media or post on your Instagram account. A dress code, particularly for employees like restaurant servers or retail associates who deal with the public, could put the kibosh on pinning an “I Like Ike” button on your uniform.
None of these policies apply to the Section 7 rights we talked about above, and many states have additional employee protections for off-duty conduct. New York labor laws, for example, prohibits employers from firing an employee for participating, on his own time, in “lawful political or recreational activities.”
Even lawful policies can get an employer in trouble if the company enforces that policy in a discriminatory way based on a protected class, like gender or national origin. If Stan in shipping can wear his Bikers for Hillary bandana, then Amy in receiving should be allowed to wear her Jeb! 2015 baseball jersey.
Bottom Line
If you are an employee looking to crank up your campaign activities as we head into the upcoming elections, find out if your company has a policy and, if it does, understand what that policy is and how it impacts you. If you are an employer, work with your HR department and your attorneys to develop sound, reasonable policies that you can enforce and enforce fairly.
The real bottom line: regardless of policy or law, be respectful of co-workers, the guy at the drive through at Starbucks, or the lady doing your taxes. That old adage about the dinner table has some real wisdom after all.
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