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Tuesday (November 8, 2016) is Election Day and while most of us would like for the election to be prolonged, the culmination of the most recent election cycle will be next week.  Then it will begin again. The apparent discord among the electorate is often reflected in the workplace.  It, therefore, behooves employers to understand what they can and cannot say and do when political beliefs penetrate the workplace.  The following are some points to be aware of should you be confronted with such issues:

For private employers the First Amendment does not protect employees’ speech in the workplace. For this reason employers can establish rules regarding what employees say to one another and express themselves politically in the workplace. For example, employers can generally have dress code policies or prohibit campaigning for political parties or ideologies.

There is no federal law prohibiting employers from firing employees for their political beliefs. Many states, however, do consider political expression from employees to be protected from discrimination and/or retaliation by employers.

Although there is no First Amendment protection and no federal prohibition about restricting the expression of political beliefs in the workplace, there are tangential prohibitions and restrictions on employers that create a minefield of potential legal problems for unsuspecting employers. For example, if an employee is expressing their political beliefs in conjunction with their personally held religious beliefs, disciplining or terminating them for that might be highly risky because sincerely held religious beliefs are protected by federal and most state laws. Employees supporting political issues such as the $15 minimum wage may be protected under the National Labor Relations Act (NLRA), which protects concerted activity by employees over the terms and conditions of their workplace.

Your company’s harassment policy may be triggered by the actions or statements made by co-workers. If political discussions get out of hand it might be that employees will feel threatened at work, thereby triggering an affirmative obligation by the company to react and ensure the work environment is safe.

The existence of a non-solicitation policy at work and your history of enforcing it will be the key to whether you can prohibit employees, during working time, from campaigning. Review your policies in this regard and ensure that you have been consistent in their application.

Thompson Coe and myHRgenius Tip of the Week is not intended as a solicitation, does not constitute legal advice, and does not establish an attorney-client relationship.


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Kevin M. Mosher

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