Dos and Don’ts for Employers: Politics in the Workplace
Today is Election Day and emotions are running high. No matter what the result, political passions are likely to spill into the workplace. Here are some dos and don’ts for the private employer in dealing with these issues. Government or unionized workplaces may be subject to additional sets of rules and concerns.
DO: Allow employees time off to vote if they need it.
New York State Election Law § 3-110 provides that if an employee who is a registered voter does not have sufficient time outside of working hours to vote (sufficient time defined as polls being open four hours before or after work) then the employee may take up to two hours of paid leave during the workday to vote. Other states have similar rules.
DO: Allow employees to communicate about the terms and conditions of the workplace.
Discussion regarding issues or candidates that specifically involve workplace concerns such as wage and hours, leave policies or office safety may implicate NLRB rules that prohibit employers from restricting employees from communicating about the terms and conditions of their workplace. Other hot button topics such as abortion, the Capitol riots or aid to Ukraine may not directly implicate NLRB rules, but blanket censorship of workplace discussion about political topics is not recommended.
DO: Enforce policies against harassment or hostile work environment.
The risk in these polarized times is that political discourse may quickly devolve into discriminatory or harassing behavior that violates both employer policies and federal, state and local law. Employers should re-enforce their rules about civil, respectful and non-discriminatory communications.
DO: Be consistent about rules limiting political displays or clothing.
Employers generally have the right to enforce dress codes or limit tangible displays of political preference like stickers or posters in the office. However, if the employer does have such rules, make sure they are enforced consistently and not in a partisan matter.
DON’T: Penalize employees for their political activity.
New York specifically prohibits employers from taking adverse action against employees because of their political activity, as long as the activity is outside the workplace and does not involve use of employer resources. For more discussion of this law, see our earlier article, Arguing Politics Creates Risk for Employers.
DON’T: Conflate political beliefs with a protected characteristic.
Under Title VII, political affiliation is not a protected class so that in theory, at least, an employer may fire an at will employee because of their politics (although such an action might run afoul of state or local law). The problem arises when the employee claims that the real reason for the adverse employment action was a protected characteristic, such as the employee’s race, religion, national origin etc. For example, someone who claims that they were penalized at work because they voted for an anti-abortion candidate may claim bias against their religious beliefs.
Politics and the workplace involve a balancing act between maintaining a safe and effective workplace environment and permitting employees to participate in democracy and express their views. It is not an easy challenge, but one message should be non-controversial: VOTE.
This article is intended as a general discussion of these issues only and is not to be considered legal advice or relied upon. For more information, please contact RPJ Partner Alice K. Jump who counsels clients on litigation, alternative dispute resolution and business counseling, with particular emphasis on representing clients in the financial services and real estate industries as well as educational and non-profit institutions. Ms. Jump is admitted to practice law in New York and before the United States District Courts for the Southern and Eastern Districts of New York and the United States Court of Appeals for the Second Circuit.