The celebration of American unity was particularly refreshing this July 4.
Divisions created during last year’s campaign season have only deepened since President Trump took office, and many say our country is more divided than at any time in recent memory.
The anger, frustration, and resentment permeating family gatherings and polluting social media can also poison the workplace. With politics and protest at the forefront of workers’ minds, employers are looking for ways to create workplace harmony without running afoul of the law.
Political speech not protected
In these days of extreme political correctness, it is worth noting that political speech by private workers is not protected under federal law. This means that private employers in many jurisdictions can discriminate against employees based on politics. For example, if an employer fired an employee based on race, the employer would face liability under federal law. However, in the private sector there is no specific federal law to stop a Republican supervisor from terminating a Democratic employee simply because of political beliefs.
Employers should be wary, however, since there is often considerable overlap between political beliefs and other legally protected characteristics. Current political discussions include things like the Mexico wall, the immigration ban, and the Supreme Court’s approach to LGBT issues. Because race, national origin, religion, and sexual orientation can be federally protected classes, employer discipline of employee speech relating to these areas might be perceived as illegal harassment or discrimination against members of those classes.
Also, employers have a duty to make sure workers’ expression of “political” views does not inadvertently lead to harassment or discrimination. General statements like, “Trump is a great president” may cause workplace division, but they do not pose legal risks. In contrast, employee statements about banning Muslims or rights of women can become problematic if they reach a level that becomes harassing to employees within the protected class.
The solution, however, is not as simple as banning political chatter in the workplace. From a practical perspective, such a prohibition would be impossible to define or implement.
Additionally, the National Labor Relations Act applies when two or more employees are discussing terms and conditions of employment. Therefore, if employees are discussing how a politician’s or party’s stance may impact things like wages or the company’s productivity, employers may be prohibited from quashing those communications.
What about political protests?
In recent months, employers face new challenges as workers engage in planned walkouts, absences and strikes as a means of political protest. Can an employee be disciplined if he misses work to attend an immigration rally?
The key question is whether the employer has an existing policy that would prohibit the absence if it was not politically motivated. Employers should enforce existing policies in a neutral way, taking politics out of the equation.
Much like our country, workplaces are melting pots of backgrounds, perspectives, and opinions. Maybe political harmony is an elusive or even misplaced goal.
Regardless, employers are wise to consult with counsel before addressing employee politics and move forward with a focus on positives rather than politics. See the full article in the July 12, 2017 edition of the Knoxville News Sentinel.
Janet Hayes, a Shareholder in the Knoxville office, is an advocate for employers and businesses across the state. Her practice is focused on employment and appellate law. Ms. Hayes has successfully defended all types of employment claims including sexual harassment, retaliatory discharge, discrimination, workers’ compensation, invasion of privacy, wage/hour claims, and denial of benefits.