As the U.S. dives into an election cycle during which presidential candidates will compete with a pandemic for attention, employers can be sure of one thing: political speech will make its way into the workplace.
When workers get political, how can employers respond? Two federal laws, Title VII of the Civil Rights Act of 1964 and the National Labor Relations Act (NLRA), offer some guidance, according to Randy Coffey, Fisher Phillips partner, and Steven Bernstein, co-chair of Fisher Phillips' labor relations practice.
It's OK to curb political speech
Employees' political discussions and actions at work create risk for employers, Coffey said. Employers may want to discourage on-the-job politics, then.
"There's some incentive in my view for employers to think carefully about making clear to everybody that maybe work isn't the best place to have intense political or social discussions, although it's also difficult to stop," Coffey said.
Bernstein echoed Coffey's sentiment, noting that employers may want to regulate political speech in the workplace for "a host of reasons" — productivity, emotion and conflict among them.
But curb it evenly and carefully
As employers consider how to discourage political activity in the workplace, they need to ensure they do so evenly, both Coffey and Bernstein warned.
Title VII requires that individuals in protected groups be treated in an equal fashion. Specifically, it prohibits discrimination on the basis of race, sex, national origin, color and religion. "So the key things for employers to keep in mind, if you're imposing discipline, is to be sure that you're doing so in an even handed manner," Coffey said.
If an employer has a dress code, for example, it needs to ensure the dress code is enforced evenly. An employer may allow workers to wear shirts — or, in these times, masks — expressing support for one presidential candidate. That's fine, but "if there are individuals in protected groups expressing another view, you can't single them out with some kind of disciplinary action," Coffey said. Adverse employment actions, Coffey emphasized, make up one of the key elements of Title VII claims.
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