The 2016 election cycle promises to be hyperactive, starting early and running hot debates both on television and spilling over into the workplace. It is, of course, a truism that life spills over into the workplace: the NCAA basketball tournament costs almost $2 billion in lost productivity every year.
Given the interplay of politics and the workplace, how can employers prepare? Although the First Amendment does not prohibit a private employer from curtailing political speech in the workplace, some state laws do provide significant protection to employees:
- California, Colorado, Louisiana, Minnesota, Missouri, Nebraska, Nevada, South Carolina, and West Virginia all prohibit employers from retaliating against employees for engaging in political activities. Further, “political activities” can be broadly interpreted to mean any activities involving the “espousal of a candidate or a cause.” Gay Law Student Ass’n. v. Pac. Tel. & Tel. Co., 595 P.2d 592 610 (Cal. 1979).
- California, New York, and Washington D.C. prohibit employers from discriminating against employees due to political activity or affiliation. California, Colorado, New York and North Dakota prohibit discrimination for an employee’s off-duty political activity.
- Illinois and Michigan prohibit employers from maintaining records of employees’ off-duty political activities. 820 ILCS § 40/9; Mich. Comp. Laws Ann. § 423.508. Illinois, Montana, Nevada, North Carolina, and Wisconsin also prohibit employers from restricting employees’ off-duty use of “lawful products,” a category that may be broad enough to include blogging software, Twitter, political signs, and other products that are frequently used to deliver political speech. 820 Ill. Comp. Stat. Ann. 55/5; Mont. Code Ann. 39-2-313(2), -313(3); Nev. Rev. Stat. Ann. 33(1)(b); N.C. Gen. Stat. Ann. § 95-28.2(b); Wis. Stat. Ann. § 111.321, 111.35(2).
- New Jersey and Oregon have “captive audience” laws that prohibit employers from taking adverse actions against employees who decline to attend political events sponsored by the employer. J. Stat. Ann. § 34:19-10; Or. Rev. Stat. Ann. § 659.785. These laws permit employers to hold political events for employees, as long as employees are free not to attend.
- Numerous states have laws forbidding efforts to coerce or dictate how employees vote. Lab. Code § 1102; Del. Code Ann. tit. 5 § 5162; Ky. Rev. Stat. Ann. § 121.310(1); Kan. Stat. Ann. § 25-2415; La. Rev. Stat. § 23:961; Neb. Rev. Stat. Ann. § 32-1537; Tenn. Code Ann. §2-19-134; Or. Rev. Stat. § 260.665(2); Ohio Rev. Code § 3599.06. Some courts even go so far as to view employees’ right to vote as “clear public policy,” and have allowed direct claims against employers who engage in voter coercion. Kunkle v. Q-Mark, Inc., 2013 WL 3288398, No. 3:13-cv-82 (S.D. Ohio June 28, 2013) (recognizing employee’s wrongful discharge claim in violation of public policy where employer threatened termination if President Obama was reelected, and employee was in fact terminated when she disclosed she had voted for Obama.)
- State laws in Colorado, Illinois, Maryland, New York, and California require employers to provide time off for voting in both primaries and general elections. Subject to some limitations, employees can take anywhere from two to four hours to vote. Rev. Stat. § 1-7-102; Ill. Comp. Stat. §5/17-15; Md. Elec. Code § 10-315; N.Y. Elec. Law § 3-110. In California, voting employees can take as long as they need to vote. Cal. Elec. Code § 14000.
- Political conversations and distribution of political materials in nonworking areas and on nonworking time may also be protected under the National Labor Relations Act (“NLRA”). Eastex, Inc. v. NLRB , 437 U.S. 556 (1978) (unfair labor practice to prohibit leaflet “criticizing a Presidential veto of an increase in the federal minimum wage and urging employees to register to vote to “defeat our enemies and elect our friends”).
There is, of course, the temptation to order the workforce to ignore these outside distractions – a pox on both basketball and ballot boxes. The success rate of doing so is equal to King Canute’s famous command to the sea to stop in mid-tide. How best to ride the waves?
First, the basic rule must be that work time is for work. Like Eastex, a policy that limits time and place to minimize disruptions is worthwhile. Such “nonsolicitation” policies must be carefully crafted to comply with a litany of cases under the NLRA, but such a policy is a valuable starting point.
Second, there is also the collateral issue of the potential misuse of company equipment (email server; copiers; etc) to support a candidate or a campaign issue. Again, there is value in having a policy although this one is even more difficult to get right under the NLRB’s latest ruling in Purple Communications, 361 NLRB No. 126 (2014) (“we anticipate that it will be the rare case where special circumstances justify a total ban on nonwork email use by employees. In more typical cases, where special circumstances do not justify a total ban, employers may nonetheless apply uniform and consistently enforced controls over their email systems to the extent that such controls are necessary to maintain production and discipline”).
Third, unless you are the rare “special needs” employer, don’t even try to ban political buttons. Dress code policies are difficult to craft, harder to enforce, and risk violating employee rights under the NLRA. Workers, whether unionized or not, have a statutory right to wear union insignia in the workplace unless there are special circumstances (employee safety, damage to machinery or products, employee dissension, or public image established as part of the employer’s business plan). Employers face a high burden in showing those special circumstances, and overly broad or inconsistently enforced dress codes are routinely rejected by the NLRB. Wal-Mart Stores, Inc., Case No. 32-CA-09116 (2012) (dress code prohibiting clothing with any logos except for company logo was unlawfully overbroad, and not justified by “public image” circumstance because it was enforced in both private and public work areas.)
Fourth, there is a value in strict neutrality. Lobbying employees on how to vote risks violating state laws. Beyond that, there are no one-sided debates; corporate lobbying of the workforce invariably demonstrates the universality of Newton’s Third Law (for every reaction, there is an equal and opposite reaction). To avoid being sucked into the vortex of lost productivity due to politics, avoid the subject altogether.
Finally, there will be exceptions. There will be rare occasions where an employee goes so far that a polite request to get back to work is pointless. Those should be treated carefully, calmly, and dispassionately. Assume that there will be litigation; assume that the judge and jury will have political views identical to the individual you are about to fire. If together we can explain that this is indeed a righteous termination, then proceed.