Politics at the water cooler: Navigating workplace political speech

Laws implicated by political expression

1. Labour laws

The National Labor Relations Act (NLRA) protects the right of employees to act collectively to improve their employment conditions. Employees’ political expression might implicate labour rights if their expression is a collective effort to address working conditions. 

In recent cases, employees argued that supporting the Black Lives Matter (BLM) movement constituted an NLRA-protected activity. The outcome of these cases largely depended on individual facts and circumstances. Just last November, the Eighth Circuit Court of Appeals found that, based on a narrow “special circumstances” defence, Home Depot didn’t violate the NLRA by banning BLM messaging on employee aprons. 

2. Anti-discrimination laws

Anti-discrimination laws protect employees from adverse employment actions based on protected categories. Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, sex, and religion, which are often political topics. Accordingly, employers’ reactions to political speech might be considered a reaction to an employee’s protected class, leading the employee to believe they were treated unfairly because of their protected class. 

3. State laws

Unique state laws also may apply to employees. For example, South Carolina employers cannot discharge employees for their political views. North Carolina has a comparable law that applies only to public employees. 

Proactive Steps

1. Determine tolerance

Employers may prefer to be more tolerant in allowing free expression of political opinions, which could lead to dissension. However, a lower tolerance might foster employee dissatisfaction. Regardless, discriminatory political expression should be prohibited in the workplace. 

2. Revise policies

Equal employment opportunity and anti-discrimination policies, solicitation and distribution policies, workplace conduct policies, dress code policies, and social media policies could all implicate political expression. Such policies should be consistent with the employer’s tolerance for political expression.

3. Train employees

Employees – and supervisors, in particular – must be trained to handle tense interactions and complaints resulting from political discussions, and to enforce policies consistently among all employees.

Employers should consult with counsel for guidance on offering a work environment that allows for political expression while complying with state and federal laws. Please contact the Brooks Pierce labour and employment team with questions on how to handle workplace political expression.

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D. Beth Langley is a Partner in the firm’s Greensboro office with over 25 years of experience counseling employers of all sizes in an assortment of employment law issues. She has represented businesses in employment litigation in matters involving civil rights, non-competition agreements, and trade secret protection.

Kemper Patton is a litigation attorney in the Brooks Pierce Raleigh office, with particular experience in employment and labour disputes involving allegations of discrimination and retaliation, unfair labour practices, and wage and hour issues. Kemper also litigates business issues such as contract disputes, trade secrets, and unfair trade practices. In addition to his litigation experience, Kemper advises his clients on employment and labour matters in a myriad of industries, such as hospitality, insurance, manufacturing, and education.  

Janelle L. Ariota is an attorney in the Brooks Pierce Raleigh office. She counsels clients of all sizes on employment-related matters, including discrimination and harassment allegations, workplace handbooks, and hiring and termination procedures.