Navigating Political Expression in the Workplace: A Guide for In-House Counsel

We are now heading into the homestretch of yet another contentious election season in a national political climate where deep divisions are prevalent in our neighborhoods and town squares. The workplace is no exception to these environments of hyper political disagreements.

A recent survey by Littler Mendelson of 400 in-house counsel and corporate executives found that 87% of employers expressed concern with managing divisive political and social beliefs among their employees leading up the election.

These are delicate times and fraught with both legal and HR challenges for employers.

Addressing the Inevitability of Political Discourse in the Workplace

One of the foundational principles of the U.S. is the idea of freedom of expression and open debate on public policy. In the public square, many of us have seen both sides of that coin: political discourse can be rewarding when people feel comfortable expressing their views and participating in meaningful discussions, but on the other hand that discourse can quickly become heated and lead to conflicts that are bad for everyone.

Of course, the First Amendment’s protection of free speech rights does not extend to the private sector, so employers have significant flexibility when it comes to regulating political expression in the workplace. However, employers are constrained by the need to comply with a variety of other laws that govern how they can interfere with employees’ political speech, such as the National Labor Relations Act and anti-discrimination laws on the books.

The fact is that employers can expect political speech and expression to occur in the workplace; the challenge is how to manage it in a way that respects individual rights, protects the health of employee morale and collaboration, and also complies with legal obligations.

Best Practices for Managing Political Expression in the Workplace

Employers can monitor and manage political expression that occurs during work hours as long as any regulations account for the exceptions imposed by federal, state and local laws.

Bradford Kelley, Kellen Shearin and Michael Lotito—employment lawyers at Littler Mendelson—contributed an insightful column to Law360®, “Politics in the Workplace: What Employers Need to Know.” The authors suggest a few key best practices for in-house counsel to consider:

• Craft workplace politics and social media policies

Employers should craft and implement effective policies and rules related to legitimate employer interests that reduce any ambiguity over what political expressions are covered. For example, employers may want to discourage supervisors from having political discussions with subordinates to minimize potential claims of discrimination, harassment or bullying.

• Communicate 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 legal landscape.

• Consistently apply policies and investigations

Employers should apply all policies and rules in a consistent, uniform and non-discriminatory manner. Likewise, if an investigation into possible violations is needed, it must be conducted thoroughly and impartially.

• Consider training sessions

Employers may want to consider training to ensure any policies are effective and known by all employees, and to train managers on how to defuse politically charged conversations in the workplace. It is especially important to train managers and supervisors on lawful policies and rules related to political activity, gearing these sessions toward a general awareness of the pitfalls of limiting political speech, as well as the potential risks for liability under employment laws.

• Have a game plan

Employers should be prepared to promptly and effectively address any violent, substantially disruptive or unlawful political communications. For example, they should consider making dispute resolution procedures available to employees who may feel uncomfortable with political activities in the workplace. At a minimum, employers may want to designate an HR or Legal contact for employees who have concerns—and if a matter appears to have spiraled out of control, employers should have a game plan to minimize reputational risks to the company.

Resources for In-House Counsel

The final recommended best practice from the authors of the Law360 column is for employers to be mindful of all relevant state and local laws, which often provide greater First Amendment-type protections for employees, and to be aware of the differences between federal and state employment laws. This requires the availability of key legal resources at your fingertips.

GCs need fast access to the information and tools required to help them mitigate external risks to the enterprise, shape legal strategy and adapt to changing circumstances. Lexis+® General Counsel Suite provides in-house counsel with a vast collection of legal resources, breaking business and legal news, and Practical Guidance content—such as the Voting Rights Resource Kit that includes practice notes, templates and checklists.

Learn more about how the General Counsel Suite can help you manage today and anticipate tomorrow by signing up for a free trial.