The 2020 presidential election season is upon us. The first presidential primaries and caucuses are in the rearview mirror and more are rapidly approaching. From now until the presidential election in November 2020, politics will become even more of a mainstay in our lives than it already has become in this age of 24-hour news, social media, and online journalism. The already breathless political coverage will only increase as the primary season continues and the number of political rallies increases. Campaign ads will begin to dominate the television airwaves and online advertising.
The increasing attention on politics will undoubtedly lead to increased discussions about politics at work. Given the current polarized state of politics, this is certain to make plenty of employers nervous. Heated discussions – no matter how well-intentioned – can lead to hurt feelings and divisions in the workplace. This can lead to certain employees having more difficulty working collaboratively. It can also lead to an increase in employee complaints if arguments get too heated or the topics become too controversial. At the risk of stating the obvious, none of these possibilities are good for morale or productivity.
This long wind-up leads to the obvious question: can employers limit or forbid political discussions in the workplace? If not, what types of steps can employers take to make sure its workforce remains happy and productive? The short answer, like most things in employment law, is that it depends.
Unlike public employers, private employers are not constrained by the First Amendment. Federal and Michigan law also does not protect employees from discrimination based on their political affiliation or beliefs. This means that, in theory, private employers in Michigan can set their own ground rules on those topics that can be discussed at work and could limit or prohibit all political discussion at work. This reality, however, comes with some important caveats. The first is a practical one. If an employer prohibits all political discussions at work, it might be worse for employee morale than allowing politics to dominate the discussion at work. As Americans, we all take great pride in our democratic process and that includes discussions, debates, and even disagreements about political candidates, parties, and policies. An outright prohibition on politics in the workplace is likely to be viewed by some as heavy-handed and unnecessary.
The second caveat is equally important. While employers are free to implement policies that discourage or stop political discussions, they must be careful not to infringe other legally-protected rights that employees have. For example, an employee might discuss a certain politician or a certain politician’s platform in the context of their terms and conditions of employment at work. If that employee is discussing those concerns in a broader context, such as pushing the employer to raise wages or reduce health insurance costs for a group of employees, that employee could easily be engaging in “protected and concerted activity” that is protected by the National Labor Relations Act (NLRA) and for which an employee cannot be disciplined. A policy requiring employees to be “respectful” or “courteous” to each other when discussing politics could also run afoul of the NLRA, although employers have been given greater leeway in this area in recent years. Or an employee might discuss a certain politician’s stance on the “me too” movement in raising concerns about sexual harassment, which is protected by both federal law and Michigan law.
The third caveat is that if an employer does implement some guardrails on political discussions at work, it needs to be sure to enforce that policy evenhandedly. If employees of a certain political viewpoint are prevented from discussing politics but those with other viewpoints are not, it could lead to claims of discrimination based on various protected characteristics (sex, race, age, etc.). And without consistent enforcement of the policy, the employer would have significant difficulty defending against a charge of discrimination. Employers should also carefully investigate claims of harassment, retaliation or discrimination by employees, even if the claim seems to be based entirely on political viewpoint or affiliation because complaints of this type can implicate other familiar employment laws.
These are just a few of the many issues that might arise when an employer considers regulating political discussions at work. As always, we recommend contacting your Miller Johnson employment attorney before implementing any significant policy changes or deciding to discipline or discharge an employee when the employer is concerned about the legal implications of that decision.