November 3, 2015

The 2016 presidential election is over a year away, but the very diverse field of candidates has already created quite a stir with their controversial and hotly-contested rhetoric.  Undoubtedly, those individuals vying to become our 45th president will continue to give us plenty to discuss and debate throughout the year to come.  Given this likelihood, employers should take a moment to consider the effect political banter could have on employee morale and productivity and take steps to address politics in the workplace before problems arise.  The following information can help private employers avoid disruption in the workplace without unlawfully limiting employee rights. 

Free-Speech Limitations

Employee free speech is limited in private workplaces.  The First Amendment, which prohibits laws “abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble,” applies only to state action.  Accordingly, private employers are not barred from limiting free speech in the workplace. 

other limitations

Employers should ensure that limitations they may place on political speech or activity do not run afoul of federal or state laws other than the First Amendment.  For example, some states, including Washington and Oregon, have passed laws prohibiting employers from discriminating against employees based on political ideology or activity.  What is more, many states have passed laws requiring employers to allow employees to take time off to vote.  Idaho currently has no specific laws banning political-based discrimination or allowing time off to vote.  Employers should also make sure that limitations are allowed under the National Labor Relations Act (NLRA) which prohibits employer action against employees working together to “improve their pay and working conditions or fix job-related problems…”

employers should inform employees about policy

Make sure employees are aware of policies limiting or prohibiting political speech.  For example, employers should inform their employees if they prohibit using company e-mail for politicking.  Make sure such limitations are applied equally to all employees and consider preparing a written policy that employees can reference to ensure that they understand what they can and can’t do in the workplace.

Unintended Consequences of Employer Political Speech

Employers must also consider the possible effect of discussing their own political viewpoints in the workplace.  For example, a gay or lesbian employee might be more likely to make a discrimination claim against an employer who vocalizes support for a candidate who opposes equal rights for gay and lesbian individuals.

Please contact a Gjording Fouser lawyer at 208.336.9777 if you would like any additional information about this topic or any other employment issues facing your company.