When Politics Erupt At Work: 8 Things To Know About Divisive Political Speech By Employees

Whether in conversation, social media, or sloganed political attire, divisive political expression has become conspicuous among employees. This can be disruptive to work operations or team spirit. Political acrimony can lead to legal claims of a hostile work environment. Inappropriate political statements or actions by an employee, amplified by social-media outrage or cringey viral videos, can even harm the company’s public image and reputation.

However, discipline or job termination for an employee’s political speech can provoke legal action against the employer. So how should employers approach this sensitive issue? That was the subject of a very timely webinar by two attorneys in the Milwaukee office of the law firm Quarles & Brady: How Employers Should Handle Political And Divisive Speech By Employees (Christopher L. Nickels and Tyler Roth).

“Employers often face challenges in choosing how to respond when employees make inappropriate statements regarding social or political issues,” they observed in their overview of the subject. “This is particularly so in an election year and in today’s often politically charged atmosphere.”

From the webinar’s extensive commentary and examples, I took away eight key things to know about divisive political speech by employees during this polarizing election season (and beyond).

1. Federal And State Laws About Employee Speech

Employers must understand both federal and state legal frameworks about what types of employee political speech are protected and not protected. Under federal law, for example, the National Labor Relations Act (NRLA) includes a concept called “protected concerted activity.” This covers non-supervisor employees collaborating on political expression regarding the terms and conditions of their employment.

One example of protected concerted activity is an expression of a labor union’s political endorsements. For example, an employee engages in protected concerted activity by saying “Vote for the union, MAGA!” but not if he or she simply says “MAGA!” or makes some other strictly political remark without a workplace connection. The NRLA and other laws discussed during the webinar—including Title VII of the Civil Rights Act of 1964 and other federal (and state) discrimination laws—apply to both unionized and non-unionized employees collaborating on political expression regarding the terms and conditions of their employment.

Politically charged criticism of the employer by employees, if it regards terms or conditions of employment, may also be protected under the NRLA and certain federal whistleblower laws. In a timely example involving Covid-19 issues, the attorneys discussed a case involving an employee who, on Facebook, criticized her company’s lax enforcement of rules on masks and social distancing at a public outdoor event. That type of criticism may be considered protected because it regards terms and conditions of employment.

By contrast, if an employee were to mock customers for not wearing a mask or for their political views, leading to business loss, the speech is unlikely to be protected. Discriminatory speech on the basis of sex or race is definitely unprotected.

State laws can differ significantly from federal laws. For example, as the attorneys were quick to point out, the US Constitution’s First Amendment protecting freedom of speech from government oppression does not apply to private employers. However, they also noted, Connecticut law does extend First Amendment protections to employees of private employers: see Conn. Gen. Stat. § 31-51q (2005).

The lawyers added that before employers take action, they should consider whether an employee’s political speech is truly disruptive to work operations. In cases where the conduct was potentially divisive but not actually disruptive, courts have ruled in employees’ favor.

2. Due Diligence Before Discipline Or Termination

The attorneys consistently emphasized that any action, discipline, or job termination for divisive political speech must be preceded by due diligence. Crucially, companies should have policies about appropriate behavior and conduct and should enforce these policies consistently. If an employee violates a policy, the employer can remind the employee of the policy and talk to them about it.

Additional due diligence can include counseling to be sure the employee understands why the divisive or disruptive political speech or action was problematic. Continued violation of policies after that “can get into termination territory,” the lawyers noted during the webinar.

3. Non-Discrimination Policy

Divisive political speech at work can easily cross over into claims of discrimination (e.g. sexism, racism), retaliation, or a hostile work environment, the attorneys observed. They cited an example of a male engineer making disparaging comments about the abilities of female engineers. Companies can get ahead of such problems, the lawyers recommended, by having anti-discrimination policies that they can remind employees of in such situations.

4. No-Solicitation Policy

Distribution of political material during work time can be pre-empted by a no-solicitation policy. This can even cover emails and texts from employees’ personal accounts and devices if the messages are sent during working hours. Again, the attorneys emphasized, the no-solicitation policy should be consistently enforced.

If religious expression is involved, employers must separate religion from political advocacy, the attorneys stated. In the federal legal framework, separating religious speech from political advocacy means an employer can counsel or take action against an employee for “non-protected” speech, such as advocating anti-abortion political candidates, even if the employee also engages in protected speech, such as displaying a Bible on his or her desk. However, before taking any action, the employer must confirm that there is not an applicable state or local law that does prohibit discrimination based on political beliefs or expression.

5. Dress Code (Or Not)

Sloganed political attire in the workplace (whether physical premises or an online meeting) is an increasingly common flashpoint for conflict among employees or between employees and customers. But dress codes are tricky to implement. The attorneys were quick to caution that employers should not try to “draw lines” about political views or topics. If a company has a dress-code policy, it should consistently prohibit all political positions and issues or permit any of them. As an example, they observed, banning Trump “Make America Great Again” hats while allowing “Black Lives Matter” t-shirts could be problematic.

6. Social-Media Policy

Many states impose legal protections for “off-duty use of lawful products” by employees. The attorneys said that this protection should be considered with regard to conduct posted by employees on their private online social-media accounts, even when outside the workplace and outside working hours.

However, they pointed out, divisive speech made by employees on private social media may have a detrimental impact on the company’s reputation and the employee’s relationship with his or her co-workers, which can lead to discipline or termination. A clear policy about employee use of social media on workplace computers can get ahead of such issues.

7. Investigate Carefully, And Consider The Employee’s Rank

When divisive political speech causes a problem, the employer must get all sides of the story, the attorneys stated—and they added that you shouldn’t assume the employee reporting the episode is telling the whole truth. They urged employers to wait for all the facts before taking any action.

The lawyers also advised employers to consider the rank of the employee who engaged in inappropriate political commentary and how that factors into the severity of the incident. For example, a different standard may apply to a high-profile company executive than to a rank-and-file employee behind the scenes. Again, the attorneys cautioned, discipline should be tied to specified company policies and must be made with an understanding of federal and state laws about employee speech.

8. Employees Beware: Any Inappropriate Conduct Outside Work Can Affect Employment

Recent months have seen instances of employees who were fired because of statements or actions made in a personal capacity completely outside the workplace and working hours. For example, an ugly or controversial scene broadcast to the world in a video that goes viral on social media may lead to the “naming and shaming” of the person involved. Once the person has been publicly identified, the connection to their employer is often easily made by amateur sleuths on the internet (a process informally called “doxxing”). Public pressure then sometimes awkwardly mounts on the employer.

In a request for comment after their webinar, I asked the attorneys about types of political or divisive expression outside work that can lead to a defensible job termination. “In general, at-will employees can be terminated at any time and for any reason,” replied Christopher Nickels. “Therefore, an at-will employee’s political or divisive speech outside the workplace may result in termination if the speech is not protected by federal, state, or local law, and the employer reasonably believes that the employee’s speech conflicts with its policies or business interests. Because we live in a world where anything can go viral, employees need to be aware that inappropriate conduct outside the workplace can impact their employment.”

One of my own employees, Matt Simon, contributed significantly to the research and writing for this article. He is a writer, editor, and content-manager at my publishing companies, including myStockOptions.com.