With the Republican National Convention well underway and the Democratic National Convention set to begin in Philadelphia on July 25, 2016, the workplace is abuzz with political discussions, a flood of political memes and impassioned debates about this year’s election cycle. As the presidential election heats up—employers have found themselves trying to manage and minimize divisive political debates in the workplace. In a recent survey conducted by the Society of Human Resource Management (“SHRM”), 75% of HR professionals indicated that their organizations discouraged employees from engaging in political activities while at work. Although politics may be a taboo subject, employers must be careful when it comes to policing politics in the office to avoiding “feeling the Bern” of litigation.

Employers cannot adopt policies that contain wholesale prohibitions against discussing politics in the workplace. The National Labor Relations Act (“NLRA”) applies to most private workplaces, including non-unionized workplaces. Under Section 7 of the NLRA, non-supervisory employees have the right to engage in concerted activities for “mutual aid or protection.” The protections of the NLRA have been interpreted broadly to include political advocacy in the workplace, so long as the political advocacy relates to labor, working conditions or specific employment-related concerns. For example, political advocacy in the workplace that links employment related concerns such as immigration reform or increasing the minimum wage to support for a particular candidate or political party would likely be protected activity as defined by the NLRA.

Although employers cannot completely ban political discussions in the office, employers should be mindful of how political statements and robust political debates can adversely affect the workplace. Because political discussions may inspire passionate debate and expose personal issues or beliefs, employers have a vested interest in minimizing political discussions that may lead to claims of unlawful discrimination or harassment because political views may be directly or indirectly linked to a protected class.

Employers who are seeking to limit political chatter in the workplace can adopt a written policy outlining the dos and don’ts of political debates around the watercooler. When deciding whether a policy on politics is right for the organization, an employer should consider:

  1. Practical Issues with Enforcement: Although employers have the right to place limits on political discussions at work, policing politics in the office may not be practical. With the media buzz surrounding the presidential election, discussions about politics are inevitable. Employers must enforce their workplace policies fairly; therefore, before adopting a policy on politics employers should consider their workforce—including the number of employees, racial and ethnic makeup of the workforce, the specific industry and even office layout—to determine if enforcing such a policy is feasible and that the policy can be applied uniformly and evenhandedly.
  2. Applicable State Laws: While the NLRA is a federal law that places limits on a private employer’s ability to police political discussions, state laws may provide for additional safeguards for political speech. Some state anti-discrimination laws provide protection for political views expressed outside the workplace—prohibiting employers from retaliating against an employee for engaging in lawful off-duty conduct during nonworking hours off the employer’s premises. Political speech and the expression of political views or leanings fall squarely into the definition of “lawful off-duty conduct.” Therefore, an employer’s policy on politics should focus on conduct in the workplace.
  3. Employees Impacted by the Policy: Employers may have heightened concerns about supervisory employees engaging in political speech in the workplace that may be offensive or run afoul of anti-discrimination laws.  Supervisory employees must be careful about expressing political views in a manner that would suggest that an employee’s continued employment is dependent upon the employee making certain voting choices or expressing political views towards one party or another.  Accordingly, an effective policy on politics in the workplace would expressly apply to supervisory employees.
  4. Interaction with Other Workplace Policies: During this presidential election cycle, more so than any other, issues of race, national origin and sex have been at the forefront of the candidates’ respective campaigns. An effective policy on political discussions at work should prohibit political speech that violates an employer’s anti-discrimination or anti-harassment policies. The EEOC recently issued guidance regarding the individual rights of Muslim employees in the workplace. In the midst of an election where terrorism has been front and center, the EEOC has hypothesized that an employee who calls an Arab-American names like “the local terrorist” and “ISIS” is engaging in unlawful harassment on the basis of religion or national origin in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”). Employers should be mindful that what one employee perceives as political speech may lead to claims of harassment or discrimination, particularly when the political-related comments implicate protected characteristics.

While a policy on politics at work is not right for every employer, the rhetoric of this election cycle provides an opportunity for employers to consider whether adopting a policy that eliminates ambiguity about political speech and activities in the workplace would help ease tensions among employees as they head to the polls.