This year has presented employers with yet one more employee-management challenge — how to handle political speech in the workplace.
A highly contentious presidential election and mass protests over social and racial justice issues have forced employers, including banks and credit unions, to think more deeply about what their policies should say about political speech in the workplace.
Kyllan Kershaw, national vice chair of Seyfarth’s labor management relations practice based in Atlanta, has seen an uptick in companies asking for help with this since the death of George Floyd in police custody in May. Michael Wahlander, a partner in Seyfarth’s San Francisco office focused on labor and employment litigation, has also gotten more questions about workplace political speech this year.
But there are not necessarily easy answers as to what constitutes political speech and how employers should handle this tricky area. Credit unions and other employers could be grappling with this issue for the foreseeable future as President Donald Trump has declined to concede to President-elect Joe Biden.
“[E]specially with talk of the election right now, I don’t see this going away anytime soon and in fact, it may get worse,” Kershaw said.
The following is an edited transcript of a conversation with Kershaw and Wahlander about the legal issues involved in regulating workplace speech.
What kinds of activities fall under political speech in the workplace?
Kershaw: It could include water cooler talk, talk among employees, and employees showing up wearing shirts or masks or other types of apparel with slogans. That’s been a very big thing, especially now with masks. There are people trying to wear masks with political or social slogans. It can also include talk on Slack or other types of social media that you use at work to message each other.
There’s also speech outside of the workplace that can spill over into the workplace. That could include social media, such as Twitter and Facebook, where they offend a coworker by making a political statement or attending a political rally and somehow they identify themselves as an employee and the video goes viral and it’s problematic.
Wahlander: A lot of the challenge is identifying what is political. A lot of the time we know it once we see it. But sometimes there might be something that is not be clear. There isn’t a ton of legal definition around it. There are more traditional notions of it, like someone’s candidacy and certain initiatives and causes, but other issues can be a bit fuzzier.
When do lawyers typically get brought in for issues surrounding political speech in the office?
Kershaw: Employers are looking to us for guidance on specific problems and what we can legally do about it and what do we need to do about it. Even if it’s political speech in the workplace, it can actually implicate a lot of other issues, including the National Labor Relations Act and the Civil Rights Act.
Wahlander: There is a whole slew of different state laws that can be implicated by employer regulation of political speech. Typically, they are aimed at avoiding the employer exerting its economic pressure over the employee to adopt a particular viewpoint. The challenge is obviously not to treat one viewpoint differently over another or not to treat any employee differently because of their political viewpoint.
What should a gold standard workplace policy say about political speech?
Kershaw: The first question is where is the client located? Some states, like California and Connecticut, have laws around that would impact what you could put in a policy. … We’ve taken two different approaches with clients. If they can, they are just saying no political speech in the workplace. You can’t show up wearing political slogans. It just causes too much division and they are banning it.
Even when they can’t ban it, we encourage clients to enforce existing policies on other issues, which frequently come up in this context. For example, policies against discrimination, harassment, bullying, threatening violence. Just because someone says something political in nature, they aren’t entitled to make a racist statement because it’s in a state where political speech is protected.
Wahlander: It depends on the organization. Some organizations are open to having political discussion amongst employees. Others might not be. It depends on how much the employer wants to get involved. … There might be a legal question about whether an outright ban is possible. But there are other things that we can do that have legitimate business purposes that would accomplish the end result. Under an acceptable use policy, you could say that you can’t use company property for political speech so something like Slack. You could say there is a dress code and you have to dress in business causal and you can’t wear shirts with logos. As long as those policies are viewpoint neutral, you are fine.
How does the First Amendment play into this?
Wahlander: There are some states that have incorporated First Amendment standards into that but as a general rule, it doesn’t affect private employers.
Kershaw: That’s probably one of the common misconceptions we see from employees. Most employers are aware of it but employees will argue, ‘I have freedom of speech.’ While that’s true in the context of the First Amendment, that doesn’t mean the workplace, in most cases.
This year we’ve had a lot of protests around social justice issues after the death of George Floyd in police custody. Is that political speech?
Kershaw: I’ve had this come up quite a bit. I think the answer is it’s a gray area. I’ve seen it a lot where clients raise the question, ‘We’ve banned political speech but does the social justice cause relate more to humanity as a whole? Is it really political?’ Employers can come down both ways on that. There’s not a legal answer to that.
You also see where employees may mention a social justice movement but tie it to working conditions. They may say something like, ‘We support this movement because it will help us finally get the help we deserve at work.’ When it’s tied to working conditions, it’s protected speech under the National Labor Relations Act. That’s where it can get really tricky if it’s about working conditions.
Wahlander: People participating in protests and things like that generally fall under what is called lawful off-duty conduct. In a lot of states, employers can’t do much about that, subject to some limitations for legitimate business purposes. But typically that’s not something that can be regulated. What exactly is political too? It is certainly an undefined area in the law. It’s not an easy question to answer.
What’s a potential consequence if an employer fails to apply policies fairly?
Kershaw: If you have a situation where someone is using racist language or making harassing statements and the employer doesn’t do anything but knows about that, that can set you up later for a claim of a hostile work environment. Likewise, if the employer is targeting some types of political speech but not others that can also open the employer to claims of discrimination and favoritism. If you have a policy, you want to enforce it and enforce it consistently.
Wahlander: A lot of the state-specific laws prevent treating people differently in employment conditions based on political view. You can’t fire someone because they are part of X political party or they voted for X candidate. It could result in damages or paying for attorney fees [in a lawsuit].
