NAR Insurance Program Quarterly Risk Report

EPL Tip

Q: Can an employer regulate its employees’ political speech or activity in the workplace?

The closer we get to election day, the more likely political activities may break out in our workplaces. In today’s climate, people get easily fired up when discussing the wall or same-sex marriage, terrorism, bathroom designations, and of course, candidates. So what’s an employer to do if this activity negatively impacts its workplace? 

The first consideration is the First Amendment. It does secure essential rights—freedom of speech, the right to assemble—but it does not apply to a private employer’s ability to regulate employee activity. However, your jurisdiction may have broad statutory protections. Certain states, including California, Colorado, Illinois, Louisiana, New York, North Dakota, South Carolina, Wisconsin and Utah, prohibit employers from taking action against employees based on their lawful off-duty conduct.

So, the next time an employee shows up wearing a “Dump Trump” or “Banish Biden” pin and you feel the need to do something:

• Consider whether any state or federal limitations on political activity or lawful off-duty conduct exist. 
• Evaluate the nature of the speech and the extent to which it unduly disrupts the workplace. 
• Assess whether the speech violates company policy. Racially offensive comments or hate speech, even if supposedly political, may be subject to discipline. 
• Ask whether the conduct is protected under the National Labor Relations Act. Add the words, “Equal pay for all” to a provocative political pin and you may need to take a step back.
• Whenever possible, consult legal counsel before taking action. 

This employment practices tip, and dozens more, are available to you on the EPL Assist^TM website. Be sure to take advantage of this valuable benefit, which provides policy templates, sample documents, risk management resources, and advice and counsel on common employment law issues facing associations.