The political climate in our country has reached a boiling point, and your establishment is not immune from the election-related turbulence that is facing us as a Nation. So, here are some frequently asked questions—along with some answers—to help guide you through this election season.

Employees Expressing Political Opinions at Work

An employee is claiming they have the right to say whatever they want at work about the upcoming election, saying they have a First Amendment right to free speech. Are they correct?

The employee’s right to free speech is protected from intrusion by the federal government, BUT is not generally protected from restriction by a private employer. Thus, private employers can decide how to manage their workforces by placing limits on employees’ political expression in the workplace.

So that means we have an unrestricted right to prohibit whatever election-season speech in the workplace we want? And we can discipline or even fire any employee that violates our rules?

Not so fast. Private sector employees have the right to engage in concerted activity under the National Labor Relations Act (NLRA) for purposes of collective bargaining or other mutual aid or protection. This is true in both union and nonunion work groups.

Under Section 7 of the NLRA, concerted activity includes statements made for the purpose of initiating, inducing, or preparing employees for group action, such as discussions about higher wages, changes to work schedules, and job security. Therefore, certain political discussions impacting terms and conditions of employment would fall under the NLRA’s purview, while political activity that is unrelated to employment concerns would not be protected.

Do we have any other concerns besides protected concerted activity claims if we discipline or terminate an employee for expressing a political opinion at work?

Federal antidiscrimination laws don’t directly protect political activity or speech, but your workers’ activity or speech could trigger these laws. If the discussion directly (or perhaps even indirectly) involves race, color, sex, sexual orientation, gender identity, national origin, religion, age, or disability, you need to be careful. After all, an employee could claim that your action responding to their political discussion on such subjects is actually a proxy for illegal discrimination. Think twice and check with counsel before disciplining any employee for engaging in such a discussion. You’ll also want to be consistent in how you address political discussion across all employees so as not to create any appearance of preferential treatment based on a protected characteristic.

And don’t forget to check the state law where you operate before taking action. Some states broadly prohibit adverse action against an employee based on political expression, while others provide no such protections.

One employee is wearing a “MAGA” hat at work. Another one just showed up wearing a big “Harris/Walz 2024” button on their apron. We’re afraid this will all lead to arguments and tension and become a workday distraction. What can we do about this kind of political expression?

Creating and implementing a consistent dress code or appearance policy is key in these situations. Be sure to consistently enforce any rules prohibiting employees from wearing apparel and accessories with political statements. For example, if you don’t allow employees to wear “MAGA” hats in support of Trump, you also shouldn’t let them wear hats promoting Harris or any other political candidate.

An employee is volunteering for a local campaign and wants to help promote the candidate here at the workplace. They want to email around a call for volunteers and hang a sign-up sheet in the breakroom and have even asked about holding a lunch-and-learn visit from the candidate. How should we approach this? 

You can generally prohibit employees from engaging in political activities such as campaigning or distributing political literature in the workplace during work hours. But there are some things you need to know about any non-solicitation rules you put into place.

  • You need to enforce them consistently and across the board. If you allow an employee to post a sign-up sheet for Girl Scout cookies in the breakroom, you may also have to allow someone else to post a political rally sign-up sheet.
  • You need to make sure you don’t stop employees from engaging in political solicitations during breaks and meals (even paid breaks).
  • Make sure you distinguish between union-related activities or other actions taken for the mutual aid and protection of your workers – which are generally protected – from political speech.

Is there anything we can do to try to minimize the chances of our workers getting into arguments about politics? And what should we do if we learn that workers are already getting into arguments?

You probably already know that workers want to talk to each other about politics. In fact, 61 percent of workers in the country say they’ve discussed politics with co-workers during the last year, according to a Glassdoor survey. While you might not be able to stop the conversations altogether, it’s important to set expectations on professionalism and appropriate workplace interactions.

Consider a reminder for managers on how to spot unproductive or heated conversations and address them appropriately. You may also want to designate a contact in your HR or legal department for managers to call with concerns. You’ll also want to work with legal counsel to ensure your workplace conduct policies are up to date given that the legal standards have recently shifted when it comes to how workplace conduct can be addressed.

Providing Employees Leave to Vote

What are our responsibilities when it comes to allowing employees time off work on Election Day?

While federal law does not require you to provide employees with time off to vote, you should carefully review the applicable state law. Many states allow employees to take leave to vote in certain circumstances. Notably, however, state laws vary on the details, including the following aspects:

  • Whether voting leave is paid or unpaid;
  • How much time an employee can take;
  • Whether employees are entitled to leave if the polls are open for a significant period before or after their shift;
  • Whether employees must provide advance notice before taking leave to vote;
  • Whether employers can designate voting hours;
  • Whether you can ask employees to provide proof of voting; and
  • Whether the right to leave includes early voting or registering to vote.

Additionally, states like California and New York require employers to post notice about employees’ right to take voting leave. As a resource, Fisher Phillips has put together this state-by-state guide of your employer obligations regarding employee voting leave.  

Our state allows voters the option of mailing in their ballot, which they can do weeks ahead of Election Day and on their own personal time. Can we require them to do that so that they don’t need to take time off work?

You could be violating state voting leave laws in some locations by requiring employees to mail in a ballot rather than attend the polls on Election Day. So, it’s a good idea to allow employees to participate on Election Day or consult legal counsel before placing parameters on such leave.

Conclusion

Private employers can decide how to manage their workforce, but when it comes to politics it’s a good idea to consult employment law counsel BEFORE creating, implementing, or acting on any disciplinary or other decisions tied to the election. 

Courtney Leyes and Emily Litzinger are employment lawyers at Fisher Phillips where they regularly partner with restaurant industry clients to minimize liability and reduce risk with preventative strategies focused on compliance, training, and the implementation of best practices. Having both worked in the industry, they understand the delicate balance restaurant employers face when managing a diverse and ever-changing workforce in today’s complex legal landscape.

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