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Political Animals in the Workplace

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All of us are, by nature, political animals, according to  Aristotle’s essay on “Politics.” And it’s politics season again, even despite the distance to the next presidential election.

For HR Managers, it won’t come as a surprise that employees have political opinions and that they vocalize them on social media. Many companies today have also taken public positions on political issues. The perennial question arises: What if an employee posts something on social media that does not accord with the company? What if an American-based (nonunion) nonpublic company takes a public stance on ICE’s immigration raids, and one of its managerial employees disagrees with the company’s position in a Facebook post? Can the company fire this employee or ask them to stop speaking against its official position?

Many states and cities have enacted laws or ordinances prohibiting employers from retaliating against employees for engaging in political activities or engaging in “lawful conduct outside of work” or “recreational activities.” A Facebook post may well fall within the purview of these laws. Thus, before taking any action, you must get a handle on the laws that apply to your company. Although the First Amendment does not generally provide protections to employees with respect to their private employers, they may well be protected under state and local laws.

With respect to conduct occurring at or in the workplace, an employer certainly has the right to enforce content-neutral bans on political expression (e.g., code of conduct; dress code). Such conditions of employment also serve the purpose of preventing unnecessary hostility and discriminatory behavior that may stem from political discussions.

But let’s take a step back and look at this from a practical standpoint. Discipline of one employee related to political activity can negatively impact the relationship between all employees and an employer. It can impact workplace productivity and may cause polarization among employees. Impacted employees may then go back to social media to express their dissatisfaction, causing further harm and discord.

A thorny issue, yes, but one we should be proud to reckon with. For, as Aristotle concluded, human beings alone, among the animals, can perceive “good and bad and just and unjust . . . and partnership in these things is what makes a household and a city.”

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This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.