It is an election year, which means from now until the polls close in November, politics will be a big topic of discussion. With key electoral events every month of 2020 including caucuses, debates, and elections, and with news and social-media coverage of the same, employers should expect political discussions to find their way into the workplace.
Of course, there are many benefits to having employees who are good citizens engaged in their communities, but employers should be aware of the fact that with political discussion and activity in the workplace comes significant risk. There is the obvious loss of productivity from employees engaged in discussions or activities unrelated to their work. Less obvious, however, is the loss of productivity by other employees subjected to what they might classify as unwelcome political discussions in the workplace.
A 2016 survey by the American Psychological Association found 17 percent of working Americans surveyed said they felt tense or stressed out as a result of political discussions during the 2016 election season, and 13 percent reported that they were less productive at work. Notably, in this survey younger workers (ages 18-34) were more likely to have reported that political talk negatively affected their work performance than older workers, with 24 percent of younger workers reporting that they had been less productive; 21 percent reporting a decline in work quality; and 19 percent reporting difficulty in getting their work done.
Non-profit corporations face the additional risk of political activity jeopardizing the corporation’s tax-exempt status. The federal tax law is very strict on this issue: A 501(c)(3) organization cannot participate in, or intervene in (including the publishing or distributing of statements), “any political campaign on behalf of (or in opposition to) any candidate for elective public office,” although the IRS makes clear that this ban does not prevent leaders of the organization from expressing their views on political matters or from speaking on important issues of public policy so long as they are speaking for themselves as individuals. If an organization is found to have violated the IRS’s ban on prohibited political campaign activity, then the IRS may deny or revoke the organization’s tax-exempt status.
State of Claims
Another risk is that political discussion and activity in the workplace can give rise to potential claims. Politics is easily intertwined with the topics of race, gender, religion, national origin, and other legally protected groups, which leaves the potential for these sorts of discussions to lead to allegations of discrimination or a hostile work environment.
For example, there may be a claim of harassment against the employee who consistently brings up his political views on immigration to his coworker who he knows recently emigrated from another country, or against an employee who shares that she is in support of a candidate’s platform that directly relates to a protected group.
According to a 2016 study by the Society for Human Resource Management, most organizations do not have policies addressing political activities in the workplace, despite the fact that private employers are allowed to establish these sorts of policies (with a few important caveats).
For instance, federal law prohibits employers from intimidating, coercing, or interfering with their employees’ right to freely vote as they choose. Employers should take care that their policies are not drafted so broadly that it could be interpreted in a way that interferes with their employees’ voting rights. When drafting such policies, it is also critically important to make clear that employees are not prohibited from speech that might relate to labor, wages, or working conditions (which, notably, often overlap with political discussions). Such restrictions would be in violation of the National Labor Relations Act, which applies to both unionized and non-unionized environments.
As part of a September 2019 legal settlement with the National Labor Relations Board, and in response to complaints that the company reacted unfavorably to workplace dissent, Google recently agreed to post a notice that affirmed employees’ rights to discuss workplace rights. The following notice now appears at Google’s headquarters in Mountain View, Calif., and also at its Nest Labs offices in Palo Alto, Calif.:
FEDERAL LAW GIVES YOU THE RIGHT TO:
• Form, join, or assist a union.
• Choose a representative to bargain with us on your behalf.
• Act together with other employees for your benefit and protection.
• Choose not to engage in any of these protected activities.
WE WILL NOT do anything to prevent you from exercising the above rights.
YOU HAVE THE RIGHT to discuss wages, hours, and working conditions with other employees, the press/media, and other third parties, and WE WILL NOT do anything to interfere with your exercise of those rights.
YOU HAVE THE RIGHT to freely bring workplace diversity issues and requests to clarify permissible workplace behavior to us on behalf of yourself and other employees and WE WILL NOT do anything to interfere with your exercise of that right.
WE WILL NOT threaten employees because they presented workplace diversity issues to us and requested clarifications of permissible workplace behavior.
WE WILL NOT reprimand, discipline, or issue a final written warning to you because you exercise your right to bring to us, on behalf of yourself and other employees, issues and complaints regarding your wages, hours, and other terms and conditions of employment.
WE WILL NOT make it appear to you that we are watching out for your protected concerted activities or ask that you report other employees who are engaging in protected concerted activity regarding their wages, hours, and working conditions.
WE WILL NOT threaten you with the loss of your job or other retaliation if you engage in protected activity with other employees regarding your wages, hours, and working conditions.
WE WILL NOT prohibit you from discussing or sharing information relating to your performance, salaries, benefits, discipline, training, or any other terms and conditions of your employment, and WE HAVE rescinded any such rules from our Data Classification Guidelines and related Data Security Policy effective November 2016.
WE WILL NOT maintain rules that define “confidential information” to include employee information about wages and terms and conditions of employment, and WE HAVE rescinded sections of our Data Security Policy and our Data Classification Guidelines that arguably used such a definition of “confidential information” effective November 2016.
WE WILL NOT prohibit you from talking to the press/media about your terms and conditions of employment or require you to obtain prior approval before speaking with the press/media, and WE HAVE rescinded any such rules in our Appropriate Conduct Policy, the “Interacting with the Press” provision in the Employee Communications Policy, and the “Outside Communication and Research” provision in the Google Code of Conduct effective September 2016, December 2016, and April 2017, respectively.
WE WILL remove from our files all references to the final written warning issued to the Charging Party on August 19, 2015, and WE WILL notify him in writing that this has been done and that the final written warning will not be used against him in any way.
WE HAVE notified you that we have rescinded the rules described above.
WE WILL NOT in any like or related manner interfere with your rights under Section 7 of the Act.
In August 2019, the month before Google’s settlement was reached, it released a new set of community guidelines that banned political discussions on the internal mailing lists. Specifically, the guidelines provided:
While sharing information and ideas with colleagues helps build community, disrupting the workday to have a raging debate over politics or the latest news story does not. Our primary responsibility is to do the work we’ve each been hired to do, not to spend working time on debates about non-work topics.
Avoid conversations that are disruptive to the workplace or otherwise violate Google’s workplace policies. Managers are expected to address discussions that violate those rules.
Google reported that these updates were unrelated to the settlement in September 2019.
Some examples of political-activity restrictions employers use include restricting employees from using the copiers, phones, company email, and other company property for campaign-related communications; restricting employees from discussing politics in a disruptive way; restricting employees from harassing co-workers about their political beliefs; prohibiting employees from wearing campaign paraphernalia as part of a neutral dress code; and prohibiting employees from representing themselves as part of the organization when engaged in specific political activity.
Obviously, it’s impractical to try to restrict all political discussion, and an attempt to quash such conversation could have negative effects on employee morale. When setting restrictions, the key is to evaluate whether the activity interferes with company’s production or otherwise disrupts the business.
Due to the legal issues involved, and the related state and local laws that differ from jurisdiction to jurisdiction, it is important for employers to consult with legal counsel when drafting such policies.