America is politically and culturally divided in ways that have not been seen in decades, especially not to this degree. And that division and discord are spilling over into the workplace. As evidence, you need look no further than the recent news cycle, filled with stories about individuals being terminated from their jobs because of insensitive, offensive, and even threatening political remarks or social media posts.
Whether it be an inflammatory, off-duty Facebook post, a controversial bumper sticker in the company parking lot, or a heated argument in the break room, employers have recently been left wondering what they can (and can’t) do to restore civility and productivity in the workplace.
The first step in answering that question involves debunking the popular myth that every employee has a First Amendment right to free speech. They do not. The First Amendment’s protections only apply to actions by the state or the government, and therefore, are not applicable to employees of private employers. While the National Labor Relations Act does impose some protections for speech related to the terms and conditions of employment, generally speaking, private employers have broad leeway in adopting rules and policies that limit or prohibit divisive or offensive political speech.
Employers faced with arguments, workplace discord, or strife over political issues can, and should, take the following steps:
- Review and Revise Policies and Codes of Conduct – Employers should revisit their handbooks and personnel manuals to include language or adopt policies making it clear that disciplinary action may be taken in the event of offensive, insensitive, discriminatory, hostile, or demeaning conduct or speech in or affecting the workplace. This includes political comments or social media posts.
- Adopt a Social Media Policy – Employers should have a policy concerning the use of social media, both for personal and professional purposes. That policy should establish that offensive, insensitive, demeaning, discriminatory, or threatening social media posts can be grounds for disciplinary action. This is true regardless of whether the post occurs on or off duty, and irrespective of whether it is intended to be ‘personal’ or ‘public.’
- Train Management – Your management team is a reflection of your organization. Managers and supervisors should be trained to recognize and de-escalate heated situations. Managers should also be trained to avoid overt expressions of their own political beliefs. Even if a manager’s statements are not outwardly coercive, the perceived differences in power can be viewed as placing pressure on subordinates. Moreover, political commentary or statements from a member of management can lead to claims of discrimination or harassment when that commentary also touches on issues of race, religion, gender identity, or national origin, etc.
- Be Consistent and Focus Disciplinary Action on Conduct/Impact, Not Content – As with so many things in the human resources universe, it is important for employers to be consistent when enforcing policies against potentially harmful speech. As just one example, if you intend to ban tee shirts or communications concerning the “Black Lives Matter” movement, you should also prohibit the same advertisements and communications relating to police support groups, such as “Back the Blue.” Equally importantly, if you choose to take disciplinary action against an employee based upon a political statement or post, make sure that the basis for the discipline focuses on the nature of the message (offensive, discriminatory, abusive, insensitive, etc.) and the impact that it has had on the workplace (discord, mistrust, inefficiency, customer complaints, etc.), not the specific political content of the message.
- Consult Counsel – Regulating inflammatory political speech in and around the workplace can be very tricky and can leave an employer open to a variety of legal claims. When in doubt, consult an experienced labor and employment attorney to assist you in developing a strategy that minimizes conflict, maximizes efficiency, and stays true to your organization’s culture.
