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The Do’s and Don’ts of Political Discourse at Work: Tips for Employers and Employees

On Behalf of | Mar 13, 2017 | Employment / Labor, Firm News, Risk Management

Given the polarizing effect the presidential election has had on our nation, political discussion has become a regular occurrence in many people’s daily lives, even during the workday.  When this occurs, it is best for an employer to pause and consider employees’ right to engage in this type of discussion along with the employer’s own responsibility to maintain a peaceful and productive workplace.  Engaging in political expression at work can have numerous implications, both on employee morale and overall productivity, not to mention potential legal ramifications.  As such, it is important for both employees and employers to understand what their rights and responsibilities are when the temptation to engage in politics in the workplace arises.

Public Employers

The answer to whether or not a particular employer is subject to liability for discrimination on the basis of political affiliation depends on the type of employer at issue and the state or city in which the employer is located.  For instance, the First Amendment’s protections of free speech generally only apply to public employers. Therefore, only government employers may face liability for a free speech violation based on the suppression of political speech or retaliation for the same.  Case law has upheld this constitutional protection for public employees of Pennsylvania as well.  The Civil Service Reform Act of 1978 further protects federal employees from discrimination on the basis of their political affiliation or activities.

Private Employers

Private employers, on the other hand, are generally free to limit or even prohibit political discussion within the workplace without facing a potential First Amendment challenge.  This essentially means that employers may choose to hire or fire at-will employees for engaging in political discussion in the workplace.  However, it is important to keep in mind that oftentimes, and perhaps now more than ever, political discussion involves topics such as gender, race, national origin, and religion.  Statements made during heated “political” discussion may become evidence in a suit alleging discrimination, harassment or retaliation based on these protected classes.

Another possible source of protection for employees engaging in political expression at work can be found in the National Labor Relations Act (NLRA).  Section 7 of the NLRA, which covers most private employers, guarantees employees “the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  A memorandum issued by the National Labor Relations Board further explains how the NLRA may apply to political discourse in the workplace.  Although the NLRA does not protect statements by employees in favor of or against a particular political candidate, the memorandum provides that the NLRA extends protection to political expression if there is a “direct nexus between the specific issue that is the subject of the political advocacy and specifically identified employment concern of the participating employees.” In other words, if the substance of the statement relates to wages or workplace conditions, albeit otherwise politically motivated, it very well may be protected under the NLRA.  An example of this is an employee encouraging another employee to vote for a certain political candidate because that candidate supports increasing the minimum wage.

Pennsylvania Law

Pennsylvania has a little known and seldom used statute that references politics in the workplace.  The purpose of this statute (25 P.S. § 3547) is to prohibit duress and intimidation of voters and interference with the free exercise of their elective franchise.  It prohibits a person or corporation from directly or indirectly using or threatening to use force, or inflicting harm or practicing intimidation or coercion against a person to induce or compel such person to vote or refrain from voting in any election or vote or refrain from voting for or against a particular person.  This statute also provides criminal penalties for an employer that exhibits any kind of political handbill or placard within ninety days of an election intended to threaten that wages will be reduced or all work will cease if a certain candidate or ticket is elected or defeated.

Laws in Other States

Other states have enacted statutes to protect employees’ expressions of political beliefs and affiliations in the workplace.  For instance, state employers in Mississippi cannot discriminate against an employee on the basis of political affiliation.  Oregon has enacted a state law prohibiting a person from subjecting another to undue influence with the intent to induce any person to refrain from voting or voting in a particular manner, amongst other things.  New York’s “Legal Activities Law” prohibits discrimination on the basis of an employee’s political activities outside of work.  This statute further defines “political activities” as running for public office, campaigning for a candidate for public office, or participating in fund-raising activities for the benefit of a political candidate.  As such, it is somewhat narrower in application than it may seem at first blush.  In California, it is unlawful for an employer to discriminate against an employee because of his or her political affiliations.

Tips for Employers

Pennsylvania employers should consider the potential implications of bringing politics into the workplace or allowing employees to do the same.  As to public employers, it is important to remember that the First Amendment’s protections of free speech along with the protections provided by the Civil Service Reform Act of 1978 apply to political discourse in the workplace, so terminating an employee for a political statement made at work may very well lead to liability for the employer.  Private employers should check both state and local laws and ordinances to determine the protections available to employees regarding engaging in political discourse at work. Employers may wish to prepare and implement policies to comply with applicable laws and state clearly what type of political discourse will be tolerated during work hours, if any.  Along the same lines, the policies should cover the steps that will be taken if an employee violates a particular rule regarding political discussion during working hours.  Employees would then be on notice of potential consequences, and employers may gain a defense to claims by employees disciplined for violating the rules.

Tips for Employees

For employees, it bears reminding that Pennsylvania is an “at-will” employment state in the absence of a contract indicating otherwise.  Therefore, a private employer is generally permitted to fire an employee for any reason, so long as that reason does not implicate one of the protected classes such as race, national origin, sex and religion.  Notably, political affiliation is not one such protected class, and disruptive behavior in the workplace, for any reason, is never acceptable. Stay true to your political beliefs, but consider keeping politics out of the workplace to ensure a more peaceful and productive work environment for all.

For a confidential analysis of your employment issues, or questions about TRC’s Employment/Labor practice area, please contact Jerry R. Hogenmiller, Esquire at (412) 316-8689 or [email protected], or Jim Rogers, Esquire at (412) 316-8651 or [email protected].

Important NoticeThis information is intended for general guidance only, and should not be used as a substitute for specific legal advice.  For specific legal advice applicable to your situation, you should consult an attorney of your choice.  Although believed to be accurate when written, no guarantee of completeness or accuracy to your particular circumstances should be implied.  Laws, regulations, and court decisions in this area change frequently, and you should consult the attorney of your choice for up-to-date information.