The 2016 presidential election has the potential to divide workplaces, just as it is dividing the nation. One of the candidates has even made statements that — if repeated by followers at work — could be grounds for discipline. How can employers limit partisan rancor without being biased or violating employment laws? Here's a quick guide.
This article by TELG managing principal R. Scott Oswald was published by The Employment Law Group, P.C. on August 29, 2016.
By R. Scott Oswald
The 2016 presidential election already has divided the nation into partisan camps that seem to share nothing but mutual dislike.
Now, as the campaign season enters its final phase, comes the real showdown: Two months of polarizing rhetoric on the campaign trail. Will the poisonous atmosphere seep into your workplace?
Will your IT manager quit in disgust after seeing her boss’ Donald Trump screen saver?
Will your coworker get fired for defacing a colleague’s “I’m With Her” poster?
Here’s a guide to surviving the 2016 election with a minimum of workplace conflict — and without running afoul of employment laws.
Let’s start with the most important advice: If your company doesn’t already have a policy against expressions of political partisanship while at work, get one in place so you’re protected from election-year rancor.
If you’re the boss, make it so; you are within your rights. If you’re an employee, lobby your boss.
Ensure that your no-partisanship policy is completely neutral, with a clear reporting procedure and escalating penalties for repeated offenses. Put it in writing and distribute it to everyone before the first dispute. Enforce the rules strictly and evenhandedly.
This approach may not suit some specialized workplaces — it won’t fly at the Republican National Committee, for example, and civil servants already have special laws such as the Hatch Act — but most employees will be relieved to enter a no-politics zone.
Two notes:
But suppose your company doesn’t have an explicit policy on partisan expression at work — and won’t, for whatever reason? Following are some tips for dealing with five common scenarios.
Most workers are smart enough not to wear Hillary Clinton buttons or Trump baseball caps to work. But what about coffee mugs, laptop stickers, or framed photos of themselves with a candidate?
Tread carefully: In some places, including Washington, D.C., it’s illegal for employers to discriminate against employees on the basis of political affiliation — and it’s a bad idea regardless of the law. Ditto any effort to control employees’ political involvement, which is illegal in California, among other places.
A blanket ban on partisan artifacts isn’t a problem. But in its absence, complaints or disciplinary action should focus on the effect of these objects. Might they alienate customers, for instance? Might they create a discriminatory environment — for instance, a “Build the Wall” mug in an office with Mexican-American employees?
It matters, too, who displays the objects: A top executive who keeps flashing a pro-Hillary cellphone case, for instance, sends a different message than an administrative assistant who does the same.
Once an employer takes action against one sign of partisan affiliation, it should apply the same logic to all such signs — any hint of favoritism could invite a backlash, and possibly legal action.
This is an unusual political season: Donald Trump has built a campaign around sentiments that, if expressed in the workplace, could provide grounds for a discrimination lawsuit.
What if an employee says loudly that Muslims should be banned from entering the United States — but frames it as agreement with Trump? Can the employee’s Muslim co-workers complain of a hostile work environment, or is this political expression that may be protected from punishment in some jurisdictions?
Again, an even-handed ban on partisan expression solves the problem. Short of this, any disciplinary action should include a clear articulation of why this particular speech violated company policy — and the employer should apply exactly the same logic in other cases, no matter the underlying politics.
Many co-workers are connected to each other via Facebook or other social media, and can witness their colleagues’ partisanship even if political speech is entirely banned at work.
Can a deeply pro-life employee take offense, for instance, upon seeing her cubicle mate boast via Twitter that he spent the weekend knocking on doors for Hillary Clinton? Or, in a lower-tech example, how about a Gold Star parent who sees his boss arrive at work in a car plastered with Trump bumper stickers?
Probably not. A complaint might be justified if a colleague’s “off-duty” messages are both public and blatantly discriminatory — or directly at odds with the employer’s mission. In general, however, employees are best advised simply to avoid the offending speech and keep things professional at work.
On-the-job political fundraising is banned for federal employees, and it is — at a bare minimum — bad form for everyone else. If done by a manager, it is likely coercive and therefore illegal in California and elsewhere.
In the case where an employee runs for public office, some states (like New York) prohibit any interference by her employer — but workplace solicitation still can be forbidden as long as it’s enforced with an even hand.
What about employees who never talk politics with their colleagues — but still show obvious partisanship on their computer and phone screens by obsessively checking tweets from @realDonaldTrump or playing the Hillary version of the “Fight Song” video for the fortieth time?
Employers need not hesitate to control what’s done on company devices and networks, although they must be equitable in enforcement. Blocking political sites, media outlets, and even Facebook is perfectly allowable.
Reasonable restrictions on the use of private phones in the workplace are permitted, too, but will likely be very unpopular and practically impossible to enforce.
One important caveat: If employees are using social media as a way to organize themselves at work — to improve workplace conditions, for instance — employers should get legal advice before interfering.
R. Scott Oswald is managing principal of The Employment Law Group, P.C.
