No one would blame employers for shunning politics in today’s landscape. Vitriol and partisanship are now par for the course and could quickly lead to workplace tension or worse.
But there are reasons – both legal and in the name of good citizenship – for employers to permit political discourse. Here are five things for employers to know this election season:
Don’t Tread on Free Speech
The Constitution’s First Amendment affords free speech to all. New York also has a law prohibiting discrimination based on political affiliation or political activity outside the workplace. This includes social media political activity.
But neither the First Amendment nor New York law constrain private employers from banning political speech in the workplace. If an employee were to campaign (pass out leaflets, wear buttons, cajole coworkers into support) on behalf of themselves or another candidate in the workplace, the employer is within rights to discipline that employee.
The key to both is that political discourse outside of the office is ok, but the employer controls what takes place in the office. Employers can determine the level of political activity they will allow.
Be Aware of the Labor Exception
The National Labor Relations Act provides non-supervisory employees the opportunity to discuss work-related political topics without punishment. Many of these topics could align with some of today’s hot-button political issues: minimum wage, immigration reform, unions, health care.
This can easily become a murky area. If someone is advocating voting for Candidate X because of their stance on unions, is that permitted political speech? And to what extent can the person go? Can they pass out fliers on behalf of the candidate? It is best to consult trusted counsel when dealing with these types of situations.
Even Workplace-Related Political Speech Cannot Cross the Line
Workplace-related political speech is permitted, but it cannot be discriminatory or harassing. For example, anti-immigration rhetoric could be discriminatory to someone based on their race, religion or nation of origin.
It is a fine line. Employers are charged with finding a way to allow workplace-related political speech without it disturbing the workplace and creating a hostile environment. Again, consulting trusted legal counsel might be the best path forward.
Encouraging Employees to Vote is Good; Rewarding Them is Not
It is illegal under federal law to pay someone to vote. Even if you are not trying to influence their vote, rewarding them to vote or register to vote is illegal under federal law. Employers would be wise to stay away from incentives when encouraging employees to vote.
Employees May Have the Right to Voter Leave
In New York and many other states, employees have a right to time off in order to vote.
Employees in New York are eligible for up to two hours of paid time off if they do not have “sufficient” time to vote. “Sufficient time” is defined as four consecutive hours to vote during the time the polls are open. For example, if polls are open from 6 a.m. to 9 p.m. and an employee is scheduled to work 9 a.m. to 6 p.m., they do not have four consecutive hours to voter and would be eligible for paid time off. If their shift were to end at 5 p.m., they would have from 5 p.m. to 9 p.m. to vote – four consecutive hours – and would be ineligible for paid time off to vote.
Employers must be aware of laws for voter time off and plan accordingly. To minimize workplace disruption, employers could encourage early or absentee voting.
In today’s environment, political discourse is almost unavoidable. Employers have the right to limit an employees’ political activity while at work with certain limitation. But they must be aware and careful when regulating political discourse, with a goal of avoiding both workplace disruption and discrimination. Keep all related workplace policies politically neutral and consult legal counsel when necessary.
This alert is not a substitute for advice of counsel on specific legal issues.
Harris Beach has offices throughout New York state, including Albany, Buffalo, Ithaca, New York City, Rochester, Saratoga Springs, Syracuse, Uniondale and White Plains, as well as Washington D.C., New Haven, Connecticut and Newark, New Jersey.