With only days before the presidential election, many employees are voicing their political beliefs on social media, attending rallies and vocally supporting their choice for a candidate.
But there are limits to what employees can do or say without risking their employment or violating company policy, says Aaron Holt, labor and employment attorney with law firm Cozen O’Connor.
To start, employees are not allowed to use their workplace affiliations when supporting a candidate outside of work, he says.
“You can't say ‘my company supports this presidential candidate’ or speak on behalf of the company unless you're authorized to do so,” Holt says. “Things like wearing a company t-shirt at a political event could be grounds for termination.”
When it comes to whether or not employers can regulate speech of employees voicing political opinions inside and outside of the office, it depends on two things: whether or not it’s a private or public employer, and the manner and content of the speech. The first amendment applies to government workers, while those employed by private companies don't have a constitutional right for freedom of speech in their workplace, Holt says. For employers, it’s important they work to find a balance between allowing employees the freedom to express themselves and ensuring they’re doing their work.
“As an employer, you still have the right to expect employees to be performing the duties for which you hired them,” he says. “So, for example, if someone is skipping work to go to a campaign rally or protest, you still have every right to enforce your attendance policies.”
From enforcing internal conduct policies to social media restrictions, Holt shared what’s acceptable, what’s off limits and what employers need to know about how employees’ political speech and actions can affect things while at work.
What legal issues or risks are you seeing right now in the workplace related to the election and politics?
One of the things that we have seen recently is questions about how to deal with certain types of speech. For example, mask messaging, where employees may show up with a Black Lives Matter mask, employers aren't sure how to handle those situations, because they want the employee to have the ability to express themselves, but at the same time, if you're in a customer facing position. So how do you balance that? And the answer is what do your policies say? If your dress code policy requires a certain type of uniform, then you have every reason to consistently enforce that policy. There has to be a clear line that the employer carves out against these kinds of policies.
What can employers do to make sure that political discussions outside the office don’t get out of hand or create a hostile work environment?
An employer's conduct policies are going to talk about professionalism and what’s acceptable in the workplace, and generally, that's going to include a workplace free from harassment, discrimination and a hostile work environment. But there's usually a professionalism conduct piece about how you need to conduct yourself in the workplace and be respectful of your coworkers. I don't think employers need to create new policies for this election or for political speech specifically, but they need to consistently apply the policies they have to make sure they're running their workforce in a way that's still efficient and makes sense for their business.
If an employer wants to discipline for political advocacy or political speech, it needs to make sure that it's not in a state that specifically prohibits that, such as California. There are other states that specifically prevent an employer from disciplining or terminating an employee for "lawful activity," like some political activity outside the workplace.
You also can't prohibit an employee from having a social media account. An employer's policy shouldn't prohibit any kind of speech on social media. Generally, they will be an extension of the conduct policies, meaning we expect employees to still abide by acceptable, respectful interaction with one another, and we still expect them to abide by our policies that relate to harassment and discrimination.
What is acceptable and what is off limits for employees — both inside and outside the workplace — when it comes to expressing political beliefs or taking political action?
Look at who your employer is and the manner and content of the speech. You might have a sincerely held belief about who is going to be a better president, or you have a strongly held belief about a political matter, but how you go about expressing that view might run afoul of your private employers internal conduct policies. A lot of employers' internal conduct policies — that all employees will sign off on — talks about being representative of the company's values, and maintaining a certain level of professionalism, which means not doing something that might unfairly damage the reputation of the company. For example, an insurance agent in Florida who went into Costco was asked to wear a mask and refused, and the video of him refusing very aggressively went viral, and he ended up being terminated for it. That's just one example of how conduct outside of your place of employment on your own time can still come back and harm your employment with your employer.
