Politics at Work: An Election-Season Toolkit for HR Leaders

Employers everywhere are bracing for one of the trickiest challenges of the year as the country goes through another contentious election season. Inflammatory political speech in the workplace is disruptive and can lead to a host of workplace issues ranging from frustration and fractured relationships to claims of harassment and workplace violence incidents.

With increasing frequency, heated political interactions are spilling over into company communication channels, internal chats, and video calls—and, even more frequently, onto social media platforms during off-duty hours. However the interactions occur, they can prompt employees to demand that the company “do something” about another co-worker’s political comments.  

            In the current election cycle, the lines between personal political expression and offensive rhetoric related to legally protected characteristics have never been blurrier or more problematic, given the issues dominating the current political dialogue and their intersection with the protected-class statuses and identities of the workforce. The goal for employers and human resource leaders is to navigate political expression by employees in a way that keeps the workplace productive, respectful, and harmonious, while following all applicable laws.

            Many employees mistakenly believe the First Amendment of the U.S. Constitution protects anything they say about politics in conversations with co-workers or on social media platforms. For private-sector workers, it simply does not. The First Amendment only restricts government action, and courts have consistently held that its protections do not extend to private employers. Employees who work for governmental employers have broader speech protections because they work for the government.

            While there are no First Amendment protections available to most employees in the workplace, there are a host of federal and state laws that offer private-sector employees protection.  Approximately 17 states (or certain cities and counties within those states) expressly protect political affiliation or activity. Some states protect lawful off-duty conduct, which includes political speech. Colorado, for example, bars employers from terminating employees for lawful off-duty political activity, unless the conduct relates to a bona fide occupational requirement or creates a genuine conflict of interest with job duties.

What Employers Can Regulate

            Employers have a legitimate interest in preventing harassment, bullying, and workplace violence when heated political debates escalate or cross over into derogatory conduct based on protected characteristics. Reputational harm when an employee’s inflammatory political post goes viral is also a genuine business concern. These interests justify regulating conduct, but not specific viewpoints.

            Here are a few specific thoughts on how to handle some common situations during election season:

1. An employee wears campaign attire that violates the dress code: The employer should enforce the dress code exactly as it would for any other noncompliant shirt.
2. Two co-workers get into a profanity-laced political argument on break: The employer should address the conduct under its civility, anti-harassment, and/or workplace violence policies, regardless of who holds which view.
3. An employee posts political content while wearing the company logo or otherwise identifying the employer: Evaluate the association with the employer, any applicable state off-duty protections, and whether the post touches on any legally protected activities (such as permissible complaints about workplace conditions) before acting.

A Helpful Checklist for Employers

The following checklist is a helpful framework for employers to remember during election seasons:

• Know which federal and state laws apply at each of your locations.
• Do not ban all political activity; limit policies to legitimate business needs.
• Maintain narrow, well-drafted policies that promote civility and prohibit harassment, and restrict political discussion in the workplace to non-work time such as meal and rest breaks.
• Enforce policies consistently, without regard to the viewpoint expressed or party affiliation.
• Reassure employees of their right to hold their own personal political views, and foster a culture where differing views are respected.
• Train managers to recognize and promptly address policy violations.
• Address issues without political bias and document decisions carefully.
• Before disciplining any employee for political speech, work through these questions:
  • Is the speech protected by federal or state law?
  • Was the speech associated with the employer? (i.e., the employee identifies as your employee in a profile or with a logo)
  • Is there a bona fide occupational requirement or reasonable job-relatedness reason for the employee’s speech? (i.e., a response to a customer or vendor, or part of the employee’s job to address issues)
  • Does the speech create a conflict of interest?
  • Does the speech violate a lawful, narrowly drawn policy (such as anti-harassment or workplace violence), regardless of the viewpoint?
  • What level of discipline, if any, is appropriate?

Election season will impact almost every workplace in some fashion, but it does not have to disrupt it. Employers that focus on conduct rather than content, apply their policies evenhandedly, and pause to analyze the applicable law before acting will be best positioned to maintain a politically respectful workplace while minimizing legal risk.