Halloween Costumes and Political Expressions at Work: Dilemmas

Yesterday was Halloween.  You may have noticed children wearing costumes walking around asking for candy and threatening harm if you didn’t comply.  It happens to be the case that adults, too, like to wear costumes both in and outside work, though it’s not as socially acceptable for an adult to wear costumes randomly as it is for a four-year-old.  Still, many adults aspire.  Similar but different, adults often wear clothing or accessories announcing their political affiliation.  [And, no, the clown costumes employees wear are probably not intended to be examples of political expression though they may be the most accurate!] 

Like clockwork the election season is upon us and, without question employees will be whipped into a fervor by the political parties.  Such enthusiasm will likely translate into employees wearing costumes or accessories to work making it clear which side of the spectrum they affiliate.  Whether it’s Halloween costumes or political apparel, we offer the following tips and reminders for handling employee dress: 

• 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 in the workplace or what they wear.  For example, employers can generally have dress code policies and 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. Be mindful of your state or local laws before firing an employee who is clearly expressing a political opinion. 

• Although there is no First Amendment protection, and no federal prohibition, restricting the expression of political beliefs in the workplace, there are prohibitions and restrictions on employers that create a minefield of potential legal problems for the unsuspecting.  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. Sincerely held religious beliefs are protected by federal and most state laws.  Another example, employees supporting political issues such as paid time off laws or a $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 from campaigning during working time.  Review your policies and ensure that you have been consistent in their application. 

 The election season is upon us all and these issues are certain to arise.Dress codes and restrictions on speech at work are particularly tricky.Call Thompson Coe or the myHRgenius HR Hotline with any questions at (651) 389-5000 or at myhrgenius@thompsoncoe.com

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.