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Political Discussions in the Workplace

With the presidential election fast approaching, political discussions are heating up all across America—in barbershops and bars, at subway stops and sandwich shops, on Facebook and Twitter. And, inevitably, these discussions happen in the workplace.

While some employers may embrace the debate, political discussions can create problems, especially in a year where race, national origin, and sex have been a central part of the campaigns. A political conversation—or the mere repetition of a presidential nominee’s statement—could easily become the focus of a discrimination, harassment, or hostile work environment suit. At minimum, an offhand office discussion during the election season can result in heated speech, ill-advised comments, bad feelings, drama, stress, tension, and a loss of productivity.

An employer faced with these conversations may be tempted to implement a far-reaching ban on political speech; after all, there is no constitutional right to talk politics at work. But if an employer were to attempt such a ban, it would likely face real difficulties.

First, under the National Labor Relations Act (NLRA), all non-supervisory employees, union and non-union, have the right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection—which includes any communication with a nexus to employment-related topics like wages, benefits, hours, and unions. If an employer’s political speech ban were to have a chilling effect on these communications, it would be in violation of the NLRA.

Second, many states have “political activity” and “off-duty conduct” laws that make restrictions on political speech untenable. For example, Louisiana makes it a misdemeanor for employers to prevent employees from participating in politics, or to control or direct employees’ political activities. California, Colorado, New York, Maryland, and other states have similar protections of employee speech.

Third, an employer would be hard-pressed to enforce its policy without monitoring break rooms, scanning employee e-mails, and otherwise annoying the employees it would like to keep happy and productive.

Employers likely want to embrace a more nuanced approach to these conversations. Send firm reminders about the employers’ anti-discrimination and harassment policies. Ask supervisors to refrain from political discussion and to focus on the work at hand. Address and calm political discussions when they arise. Encourage decency and respond to complaints, especially when they rise to the level of harassment or discrimination.

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.