|
Democrat, Republican, McCain, Obama, conservative, liberal, independent-
politics, politics. On the radio, on television, in the newspapers, on the
internet, and, more than likely, in your workplace. With what may be one of
the more contentious presidential elections in history cresting the horizon,
now is as good a time as ever to brush up on your understanding of the
boundaries of political expression in your work place and by your employees.
The bad news? Some laws of course, vary from state to state.
Public employers vs. private employers
First
let’s talk First Amendment. You know the one, “Congress shall make no
law…abridging the freedom of speech.” However, did you know that the
application of the First Amendment to the workplace extends only to those
employers who are involved in “state action”? In other words, private sector
employers are not required to let their employees’ free speech ring throughout
the workplace (unless that right is given by other law, i.e., state law or
contract law).
This is,
unfortunately, an area of law about which many employees’ handbooks or other
standard workplace documents, questions about the constitutionality of your
private sector company’s dress code may eventually arise. It is most often a
misunderstanding of the First Amendment’s protection that leads employees to
believe that they have an inherent right to express their political beliefs
whenever, wherever, and however they wish. For private employers, though, this
is simply not the case.
So
without the backing of the First Amendment, private employers can just put the
kibosh on any and all of their employees’ political activities and save
everyone a lot of trouble, right? As always – not necessarily.
Dress
codes, e-mail, and can they use my copier?
Unless
you’re a candidate yourself, you pay your employees to work, not campaign,
during paid working hours. Understandably, it’s during those working hours
that employers have the most authority over employee political activities.
It’s in your best interests as an employer, as well as your employees’ best
interests, to have a safe and productive work environment free from squabbles
over partisan issues or last night’s debates.
So,
while it’s probably not necessary to police every instance of political
chatter that occurs among peers around the water cooler, you can limit
political expression, particularly if it may become disruptive. Employers can
monitor political statements made to customers and the general public on
company time, including passive statements made by pro-candidate buttons,
clothing, or other paraphernalia. Dress code and office décor enforcement,
restricting use of company resources (including e-mail and other electronic
forums) for campaigning, and prohibiting political fundraising within the
workplace are other restrictions that are purely within reason.
Off-the-job: State specifics
Political activities outside the workplace are a more difficult subject to
approach. At the most general level, the rule of at-will employment applies.
“At-will” employees can usually be terminated for any reason - even for no
reason - unless there is a specific exception that applies to that employee.
Federal
law protects the most important aspect of political expression – voting
(intimidation, coercion, or interference with a person’s right to vote for
candidates for federal office is prohibited). Yet other than the additional
rights of unionized employees to participate in concerted activities, federal
law holds no special protection for employees’ political views, affiliations,
and off duty activities.
Thus,
unless specifically preempted by state laws, private employers may take
extraordinary actions, including termination, against at-will employees who
participate in some form of political activity that the employer does not
like. One high-profile example is the 2004 case of an Alabama woman who was
fired after refusing to remove a candidate’s bumper sticker from her car.
As you
may have guessed, not only are these cases of employee discharge over
political expression rare, but a number of states have enacted laws to
preserve the rarity of such employer actions. Some states have enacted laws
giving special protection to political expression and activity, even in
private workplaces. A few of the most notable laws follow:
Broad
protection of lawful outside activities
Four
states-California, New York, Colorado, and North Dakota-prohibit workers based
on lawful outside activities, including political activities.
California
California labor Code SS 1101-02 prohibit employers from preventing or
forbidding an employee’s participation in politics, including running for
political office. The sections also forbid employers from controlling or
directing or (having a tendency to control or direct) an employee’s political
activity, i.e, demoting or suspending employees in addition to discharging
them from employment.
But what
constitutes “political activity”? The interpretation by California courts has
been rather broad, including participation in social causes, criticism of the
current president, and even “coming out” as gay, lesbian, or bisexual. Thus,
California employers are essentially under a rule that “if it looks like
politics, it probably is, and it’s probably protected.”
Though
the statute itself does not specifically restrict these prohibitions to
off-duty conduct, it is generally accepted that this wide protection only
covers those off-duty activities. California employers certainly aren’t
expected to allow employees to stage anti-war protests within the office
building, but the clarity honestly ends there.
Violation of these sections of the Labor Code can result in hefty fines and
even jail time, so tread very, very lightly.
New York
Thankfully, New York’s Labor law S201 defines “political activities”. In the
Empire state, “political activities” includes running for office, campaigning
for a candidate, or participating in fund-raising activities for the benefit
of a candidate, party, or political advocacy group. New York employers are not
permitted to discriminate against an individual who participates in any of
these activities outside of working hours, off premises, and without use of
the employer’s equipment or other property.
Colorado
Colorado
law generally prohibits employers from terminating employees for their
participation in “lawful activities off the premises of an employer during
non-working hours.” (Colo. Rev. Stat. S24-34-402.5). Exception may be made for
employers who wish to regulate employee conduct related to a bona fide
occupational requirement or if the regulation is necessary to avoid a conflict
of interest with responsibilities the employee owes the employer.
North Dakota
Like
Colorado’s law, North Dakota’s Century Code S 12-02.4-01 prevents
discrimination against employees who participate “in lawful activity off the
employer’s premises during nonworking hours.” The North Dakota law also
provides exceptions for activities that directly conflict with the essential
business-related interests of the employer.
Voting coercion
New
Jersey prohibits employers from threatening employees to force them to vote or
not to vote or to vote for or against a particular candidate. Employers are
also prohibited from otherwise impeding the free exercise of employees’ voting
rights or from penalizing an employee for voting a certain way. New Jersey law
also provides that an employer may not include direct or implied threats
intended to influence the political opinion of actions of employees on any
sort of pay envelope. Finally, New Jersey employers may not post signs
threatening wage or job reductions in the event that a certain candidate wins
within 90 days of an election.
Pennsylvania law also includes a statue prohibiting the use of pay envelopes
as a delivery method for threatening messages intended to influence the
“political opinions or actions” of employees. Pennsylvania also uses the
90-day rules, restricting employers from posting paraphernalia that threatens
negative recourse such as company closure or wage reduction in the even that a
particular candidate prevails in an election. Such materials may not be posted
within 90days of an election. Finally, Pennsylvania law prohibits any threats
intended to affect employees’ free exercise of their right to vote.
Wisconsin law also prohibits employers from threatening to close the
workplace or reduce wages based on the result of an election, and employers
may not use other threats of adverse employment actions to coerce employees
into supporting a candidate or voting a particular way. Similar laws exist in
Maryland and Arizona, as well.
Michigan
employers are also prohibited from discharging or threatening to discharge any
employee in order to influence his or her vote in any election. Tennessee
employers may not circulate intimidating or coercive statements that would
cause employers to vote or not to vote for any candidate or measure. Further,
Tennessee employers may not discharge employees for failure to vote as the
employer wishes, nor are other methods of voting coercion permitted.
Washington employers are prohibited from discriminating against employees due
to that employee’s failure to support or oppose a particular political
candidate, party, or proposition. Louisiana prohibits employers with 20 or
more employees from making or enforcing policies that control or tend to
control or direct the political affiliations of employees or that attempt to
coerce or influence employees’ support or affiliation through threats of
termination.
Other
prohibitions
Records of political activity
Illinois and Michigan prohibit employers from maintaining records of
their employees’ off-duty political activities. However, Michigan employers
are permitted to keep records of activities that occurred on the employer’s
premises or during work hours if those activities interfere with the
employees’ performance of their duties.
Political affiliation discrimination
Washington D.C.’s extremely inclusive Human Rights Act contains a provision
that prohibits employment discrimination based on political affiliation. In a
somewhat similar vein, South Carolina forbids termination of an employee
“because of political opinions or the exercise of political rights and
privileges guaranteed to every citizen.”
Free
speech rights
While it
is generally true that private sector employees do not have the right to
exercise free speech in the workplace, Connecticut employees are in a league
of their own. Under Connecticut General Statues S31-51q, Connecticut employers
may not discipline an employee for the exercise of First Amendment rights. The
right does not go unfettered, though. The employee’s speech must not interfere
with is or her job performance or the work relationship between employer and
employee.
Interference
Finally,
as broad as they come, Mississippi’s Code S79-1-9 forbids any corporation from
“interference” with the political rights of its employees. Missouri scales
this broad definition back a bit with its bar against employers who prevent
employees from engaging in political activities including holding positions as
members of committees, participating in political conventions, or soliciting
or receiving funds for political purposes. However, Missouri’s law does not
protect against employers who wish to compel political behavior, only against
those who wish to restrict it.
Bottom line
According to a 2008 survey conducted by the American Management Association,
more then half of companies surveyed have no written policy prohibiting the
distribution or posting of campaign materials. Unfortunately,
misunderstandings and conflicts are more likely to arise if there is no
direction and guidance regarding political behavior. Any policy- even a
lenient or pro-political activity one – is better for employees’ need for
direction and understanding than no policy at all.
Be clear
about your specific workplace policies, not only on politics, but on any issue
of individual expression where there could be very intense personal devotion.
Set out the rules clearly in your employee handbooks and address
transgressions of those rules promptly and fairly. If your policies are
lacking, remember that it’s never too late to improve upon your employment
practices, but ensure that any changes you make do not appear to unfairly
target a specific employee’s act of political expression.
Further,
particularly with the current election, employers must take care that idle
political speech, and their reactions to such speech, don’t turn to actions
that can be interpreted as racist, sexist, or otherwise discriminatory. If
political fever is running rampant in your workplace, remember, it will be
over in December. Maybe.
excerpted from Employers State Law ALERT Letter,
Vol. 3, No. 3 March 2008
Back to Top |
.jpg)