With the upcoming 2018 Election Day on November 8, to say that this election cycle has been more politically charged than most is an understatement at best. So what happens when political discussions begin to (or maybe they already have) sneak into the workplace? Hopefully, nothing. Ideally the discussions remain just that—a civil discourse between employees, perhaps during their lunch hour.
But with about one-quarter of employers from a SHRM study conducted earlier this summer already indicating that they were feeling this year’s election causing greater political volatility in their workplaces, it never hurts to know what your options are before the political discussions heat up too much and start to boil over.
What mechanisms can employers use to limit politics in the workplace?
According to the same SHRM study, 24% of employers have a formal, written policy on the books on political activities and 8% have an informal policy (unwritten). That leaves about two-thirds of employers who have no policy addressing political activities in the workplace. In short, don’t feel badly if your organization doesn’t have a particular policy in place already, most don’t. However, in many cases, other types of policies about employee conduct may cover any blow-ups that might result from political discussions gone bad.
For example, anti-harassment or even more general policies about conducting oneself in a “professional” or “non-disruptive” manner should help keep the peace.
But I thought political speech was protected under the 1st Amendment?
For public employers yes, but technically private employers can limit free speech (in this case about politics) while employees are at work.
So I can just shut it all down?
Almost. Keep in mind that certain political topics could also fall under “protected concerted activity”, which then would make it protected speech, even in the private sector. With this year’s election diving into many areas that could be seen as involving “terms and conditions of employment” (think ACA, minimum wage, parental leave, etc.) this line between what is allowed and what is not, starts to get sticky from a legal standpoint. In addition, be aware of any conversations or communications that may start to stray down the path of violating your company’s anti-discrimination or anti-harassment policies. Again, if you don’t have a formal policy on politics in your workplace these can be powerful tools if discussions get nasty.
Assuming that employees aren’t spewing racial slurs at one another or discussing unionization to express their political views then, yes, simply shutting the rest of it down is definitely an option. In some cases this may be the simplest option, as yet another caveat that can cause employers legal trouble down the road is that they must treat all political views expressed by employees equally.
For example, if you let one employee hang up a flier about a Trump rally in the breakroom, you must provide the same option should an employee request to do so for a Clinton rally.
Typically, giving equal billing to employees representing these major two parties doesn’t cause too much of a dilemma. However, particularly as this election cycle has seen the rise of many third party interests, some of which are quite extreme in their views and very much on the fringes of societal norms (both on the left and right), keep in mind that letting an anarchist or white-supremacist party hang their information up on the bulletin board might raise a few more eyebrows.
What about the company itself? Do we as an employer have to be “equal” in our political expressions?
No, and this is a key difference between employee expressions of politics as compared to employer to employee expressions. Per the 2010 U.S. Supreme Court case commonly known as “Citizen’s United”, private corporations are free to share their political opinions with their employees. From large political donations to emails informing employees that they would likely lose their jobs if they voted one way or another in the election to employees attending onsite rallies for candidates hosted by employer, the 2012 election was full of examples of employers expressing their political options in a variety of ways. While many of these drew a great deal of controversy at the time, ultimately they were deemed legal.
What are other employers doing this election cycle?
Interestingly, while these political expressions and activities were widely covered by the media in the 2012 election, similar stories have yet to surface in 2018. No matter your personal political leanings, there is no question that the 2018 election presents very different circumstances as compared to 2012.
So although there is no hard and fast data to cite specific to employers, it is possible that like many voters, employers aren’t feeling particularly “wowed” by either major party candidate and have decided to sit this one out.
Alternatively, employers may also be considering the highly polarized nature of this election and are trying not to ruffle too many feathers among those employees who do have strong opinions. Finally, with the obvious exception of large financial contributions, it may also just be too early in the election season to tell if this strong corporate messaging will take place again.
Back to the employee side then—once we’ve made a decision, what’s the best way to make sure company policy is being followed?
In the example above about hanging up posters, enforcement is fairly easy—either you allow it or you don’t. But in terms of political discussions, if you do make the decision to “shut it all down”, unfortunately there is no really good answer to the enforcement question.
In fact, when weighing the pros and cons of putting forth a company policy eliminating all politics from the workplace, it is often this challenge of enforcement that causes companies to temper their policy somewhat.
Unless you are a very very small company, it is logistically highly unlikely that HR can monitor every conversation in every office from now through Election Day (and beyond). Without any teeth in terms of enforcement, in some cases eliminating politics from the workplace can cause more issues than it’s worth. Will an announcement like this cause a lot of disgruntled employees?
Or, will taking politics out of the workplace come as a relief to those who may not be comfortable having political discussions with their co-workers for fear of judgement? As with many questions around employee conduct, these can only be answered on a case-by-case basis. What is right for one company may not be a good fit for another. Ultimately, taking a good hard look at your company’s culture and being familiar with your workforce on the whole are going to be the best guides for how much political speech should (or shouldn’t) be limited at your workplace.
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