Elections tend to bring out campaign buttons, strong political opinions and hats promising to make America great. So what should employers do when their employees start to mix the political and the professional?
Sherman & Howard on Oct. 1 held a webinar, “Red! Blue! Purple! Navigating Political Speech at Work,” to address that question. During the talk, part of the firm’s L&E Live series, labor and employment attorneys Elizabeth Chilcoat and Joe Hunt discussed the pros and the pitfalls of regulating political speech in the workplace.
“What we’re talking about is political activism, expression or speech that has some nexus, or some connection, to an employer’s business and workplace,” Hunt said, noting this is a broad category and that social media has blurred the lines between private life and work-related politics.
“From discussions at work to outside rallies, it’s sometimes hard to distinguish between purely political speech and political speech that includes a message about the workplace,” he said.
There are many reasons employers might want to regulate political speech, according to Chilcoat, including protecting the company’s brand or reputation, maintaining a harmonious workplace and to comply with legal obligations, such as pay-to-play regulations for government contractors.
Private employees in Colorado aren’t protected by the First Amendment in the workplace, and private employers in the state can generally terminate or refuse to hire workers due to their political beliefs and can dictate what speech is considered acceptable in the workplace, Hunt said. However, he noted there are “expansive statutory exceptions” to this, including Title VII.
TITLE VII TROUBLES
“As a result of the nature of political speech, which may be closely associated with protected characteristics, it is possible for political speech to enter your workplace at times you’re not expecting it to,” said Chilcoat, adding that social movements such as #MeToo, Black Lives Matter, LGBT and immigrant rights have brought new political arguments into the workplace.
“Because we’re social beings, and because people do bring into the workplace their politics, you need to be thinking about how that could impact discrimination, retaliation and harassment issues in the workplace,” she said.
Allowing certain types of political speech could lead to harassment claims under Title VII by employees who say the speech contributes to a hostile workplace. According to Chilcoat, such claims often involve Black workers who say that, in addition to other offensive conduct, they were exposed to Confederate flags in the workplace, and as a result many employers have a blanket prohibition on Confederate flags.
But employers who restrict speech can also be opening themselves up to discrimination and retaliation claims, she added, citing a recent case involving Whole Foods workers who were disciplined for wearing Black Lives Matter face masks on the job. They claim the retailer discriminated against them by disciplining them because they are Black or because they associated themselves with Black people by wearing the masks, Chilcoat said, and that Whole Foods applied its dress code policies unevenly because it allowed workers to wear gay pride flags, pins that say “Lock Him Up” and masks with their favorite sports team logos.
Employers may also run into trouble if their attempts to regulate political speech restrict workers’ rights under the National Labor Relations Act. Section 7 of the NLRA gives employees, both union and non-union, the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Employers could risk violating these protections if they restrict speech related to wages, hours, working conditions and terms of employment.
Hunt said difficulty arises when determining the difference between “purely political” speech that can be regulated and speech that has “crossed the line into Section 7 territory.” The latter could include discussions about which candidate to vote for because of their stance on the minimum wage or employer-provided health care.
For example, Hunt said, saying “Vote for Smith” is probably not protected by the NLRA. However, he said, the NLRA might protect a worker who says, “Vote for Smith, she cares about the American worker and wants to raise the minimum wage.”
“That contains a mixed communication relating about politics in the workplace. And these expressions really blur the line between political speech and protected speech,” he said.
Hunt gave recent examples of political speech and actions the National Labor Relations Board has deemed protected. The NLRB General Counsel found that the 2017 “Day Without Immigrant” demonstrations were protected because aggressive immigration enforcement threatens immigrants’ job security and working conditions, he said. Based on the Day Without Immigrants decision, he said, the NLRB is also likely to find a strike for Black Lives Matter is protected activity. The NLRB has also ruled in favor of In-N-Out Burger employees whose employer tried to stop them from wearing “Fight for $15” buttons.
The attorneys also discussed Colorado-specific laws employers should be mindful of when attempting to restrict employees’ political expression, such as the Colorado Lawful Off-Duty Activity Law. The statute makes it unlawful for an employer to terminate an employee because of the employee’s lawful activity away from work premises and during nonworking hours, but there are exceptions for activity that is related to the worker’s job requirements and employment activities and for cases where termination is necessary to avoid a conflict of interest or the appearance of one.
At the end of the talk, Chilcoat offered some key takeaways. These include adopting a “reasonable” non-solicitation policy for the workplace and applying it consistently, as well as enforcing dress codes consistently.
“You should also think about how political speech is going to impact your business or entity,” she said, adding that political speech might not be as harmful to a company that only deals with a few clients as it would be for a more customer-facing brand.