As campaign season kicks in to high gear, politics and elections are on everyone’s mind. Messaging and conversations involving politics are everywhere, and the workplace is no exception. With that in mind, what are the required and appropriate boundaries between political activities and the workplace?
While some organizations may be more politically focused than others, all employers should be aware of their responsibilities in managing politics in the workplace, and the potential pitfalls that allowing or even encouraging different activities might have. The political activities of both employers and employees can have implications in federal and state law.
It’s important for employers to consider in advance how to address the political activities of employees. Many conversations that begin as innocuous political discussions can become contentious and ultimately devolve into bullying or harassing behavior. Although political beliefs are not by themselves protected classes at the federal or state level, some organizations may include political beliefs as a protected class in their internal policies. Additionally, political conversations often touch on protected class issues, so federal and state harassment laws may apply as well. Employers should stay vigilant in enforcing harassment, bullying, solicitation, computer use, and communication policies during the campaign season. However, while private employees typically do not have free speech rights with regard to statements made in the workplace, public employees may. Public employers should be conscious of potential free-speech issues, and focus on content-neutral speech restrictions.
While employers may be able to regulate the political activity of employees during worktime or at the workplace, they should exercise caution in disciplining employees for political behavior outside of work. Many states, including Colorado, have laws protecting employees from being terminated for legal, off-duty activities. While there are some exceptions to that law, it is an area that employers should approach with caution. In addition, Colorado law specifically prohibits employers from preventing their employees from “engaging or participating in politics or from becoming a candidate for public office.” (C.R.S. 26-8-108). Arizona, Utah, and Wyoming do not have similar statutes, but employers in those states should remain cautious about disciplining employees for non-work related activities as well.
Political activity related to unions may also be protected under the National Labor Relations Act, and employers should be very careful in regulating or disciplining conduct in this area. However, employers may prohibit political activities during working time and in working areas, and may require employees to refrain from using the company name or logo in off-duty political activities. As with other conduct policies, should you choose to have restrictions on this type of conduct, it is best to include general guidance in your employee handbook.
Employer sponsored political activities
Public and 501(c)(3) organizations are subject to considerable restrictions on their political activity, and engaging in politics may raise serious constitutional issues or jeopardize an organization’s tax-exempt status. Private, for-profit employers, however, have significantly more legal freedom to engage in political activities with employees.
Before deciding to align your company with a political candidate or cause, however, you may want to consider the possible effects on your relationships with your employees and the community. Due to the divisiveness that politics can cause, you may find that identifying your organization as being on one side of an issue or race may alienate some of your workforce and customer or client base.
It’s also important to note that some states statutorily limit the types of political communication that employers may have with their employees. Colorado, Utah and Arizona law prohibits employers from including in compensation materials any threats or statements intended to influence the political opinions or actions of employees. These states also prohibit, within 90 days before a general election, the display of any notice containing threats to employees depending on election results, including threats to reduce their compensation or conduct layoffs. (Colorado: C.R.S. 1-13-719; Utah: Sec. 20A-3-502; Arizona: Sec. 16-1012).
Another employee-related issue that often arises during election season is voting leave. Many states, including Colorado, require that employers offer paid leave to employees to vote under certain conditions. Colorado employers, upon request the day before a general or municipal election, must provide employees up to two hours off with pay only if the voter does not have three or more non-scheduled work hours between 7:00 a.m. and 7:00 p.m. in which to vote. Employers may not discharge employees for absences for the purpose of voting. (C.R.S. 1-7-102 and C.R.S. 31-10-603).
Arizona employers must provide up to three hours paid time off to enable an employee to vote in a primary or general election if the employee has less than three hours either before or after work in which to vote. (Sec. 16-402). Utah employers must also provide employees up to two hours paid time off between the time the polls open and close in which to vote, unless there are three or more nonworking hours during the time the polls are open (Sec. 20A-3-103). Employers in both Arizona and Utah may require that employees apply for voting leave prior to Election Day.
Given the mandatory provision of voting leave under certain circumstances, be cautious in disciplining employees for absentee issues on Election Day. In order to ensure that your employees are aware of your policies regarding voting leave, including when you will grant it and how they should request it, you may want to review your handbook to make certain that information is available to them.
In addition to the legal responsibilities, fostering a civil workplace will also go a long way to avoiding political contention in the workplace.
One strategy is to proactively address this as part of a larger effort to enhance workplace civility. Here are basic steps to encourage civil behavior among employees:
- Hire Right: When interviewing, include questions about civil behaviors; listen attentively to responses and look for specific examples. When reference checking, ask pointed questions and listen carefully.
- Define Expectations: Discuss your code of conduct on Day 1 of a new employee’s hire.
- Model Civil Behavior: Leadership must set the tone and consistently model desired civil behaviors.
- Acknowledge: Communicate to your employees that diverse political beliefs exist in the workplace; despite that, employees must treat each other respectfully and not let political differences negatively impact their work.
- Train: Don’t assume employees understand pat phrases like “Appropriate and Professional Behavior”. Instead, discuss common workplace issues and provide examples of acceptable behaviors.
- Consequences: Draft policies that define consequences of uncivil behavior and hold offenders at all levels accountable.
Take steps today to address uncivil workplace behaviors, and give us a call if you need help!