The 2016 Presidential Election was one of the most contentious in recent memory. Passions ran high on the left and the right. While many hoped Election Night would bring a reprieve, it did not.
Politics has become so divisive that many employers are adopting policies to limit political speech in the workplace. But how far can they go, and what rights do employees have to free speech in the workplace. Here are five key considerations for every employer when it comes to political speech in the workplace.
- There is no “free speech” in the workplace. Many people mistakenly believe that the First Amendment guarantees “free speech” in the workplace. That is not true. The First Amendment only applies to governmental action. It does not give an employee a constitutional right to express political thoughts or opinions at work. Employees are free to express their views on their own time, but not at work. With some limited exceptions surrounding employee speech about the terms or conditions of their employment, employers are generally allowed to adopt company policies that limit or prohibit speech in the workplace.
- Don’t restrict an employee’s off-duty political activities. The rules regarding off-duty political activities vary widely from state to state. New York’s Labor Law prohibits employment discrimination on the basis of “political activities,” which include a variety of political activities outside of working hours, off of the employer’s premises and without use of the employer’s equipment or other property. Take care that employees are not subject to real or perceived discrimination because of their off-duty political activities.
- Promote Inclusion. While it may not be practical to adopt a policy that prohibits all political speech, employers should, at a minimum, adopt policies that prohibit political speech that creates a discriminatory environment for other employees. Employees should be mindful of the fact that strongly held positions on a variety of social issues may, based on how they are shared, be perceived as discriminatory. By their very nature, workplaces bring together people with differing beliefs and values. Make sure your company’s policies promote inclusion.
- Campaign fundraising in the workplace is tricky. Company resources should not be used to underwrite fundraising for a federal candidate. Resources made available to a political candidate must be charged to and paid for by the campaign at fair market value. Nevertheless, employees can generally solicit political contributions from their co-workers so long as the contributions are voluntary and made without threat of reprisal or retaliation. Contributions must be from personal funds and should not be reimbursed by the company.
- Recognize the difference between political speech and religious conduct. Employers must learn the difference between political speech, which is not protected, and religious expression, which is. Federal and state law prohibit discrimination on the basis of religion. An employer has an obligation to reasonably accommodate an employee’s religious expression, even in the workplace. For example, an employee likely has a right to display a religious object (like a copy of the Bible, Torah, or Koran) in his or her private office. However, a corporate policy limiting political speech in the workplace can be used to stop an employee from advocating for a political candidate even if the employee is doing so because of shared religious values.
While companies justifiably seek to adopt policies that limit political speech in the workplace, perhaps there is room for all of to look inward. On Tuesday, July 4, 2017 we celebrate the 241st anniversary of the signing of the Declaration of Independence. As we examine the implications of our current political climate, perhaps these words from the Declaration’s author, Thomas Jefferson, can give us some needed direction: “I never considered a difference of opinion in politics, in religion, in philosophy, as cause for withdrawing from a friend.”
Terence Robinson is a Partner at Boylan Code LLP, a full service law firm with offices in Canandaigua, Newark, and Rochester. Mr. Robinson can be reached at firstname.lastname@example.org.
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