In today’s divisive climate, political speech in the workplace is a topic of increasing relevance and complexity. While workplace discrimination based on race, gender, religion, age, or disability has long been prohibited, discrimination on the basis of an employee’s political affiliations or beliefs is a more nuanced, often overlooked challenge since it is not among the characteristics protected under federal workplace anti-discrimination laws. As political polarization in the US intensifies, the impacts of political beliefs on professional environments are becoming more pronounced, and as the 2024 election approaches, employers are grappling with how to handle political discussions that arise in the workplace in a manner that respects individual freedoms while maintaining a productive and harmonious work environment.

Allowing political discourse can foster a culture of openness and engagement, where employees feel comfortable expressing their views and participating in meaningful discussions. On the other hand, political discussions can quickly become heated and lead to conflicts or divisions among employees, potentially disrupting teamwork and collaboration. Employees may feel marginalized or excluded if they hold minority political views or if political discussions are dominated by a particular perspective. Further, excessive political discourse might detract from work-related tasks and affect overall productivity, especially if discussions become contentious and relationships become damaged. To navigate the complexities of political speech in the workplace effectively, employers should aim for a balanced approach that respects employees’ beliefs while maintaining a professional environment. Here’s what employers should consider when navigating politics in the workplace:

• Regulating Political Speech: Contrary to popular belief, employees of private employers do not have unfettered “freedom of speech” in the workplace under the First Amendment, as the First Amendment generally applies only to government censorship of speech. Accordingly, an employer can regulate political speech in the workplace for legitimate business‑related reasons. This may include, for example, discipline of employees for political speech that disrupts the workplace, violates established policies or standards of conduct, and/or interferes with the efficiency of the business.

  Employers need to be particularly careful when managing two specific areas:

  – National Labor Relations Act: First, under the NLRA, both union and non‑union employees who speak out about employment issues may be protected. The NLRB has specifically stated that non‑disruptive political advocacy for or against a specific issue related to a specific employment concern occurring during non‑work time and in non‑work areas (such as protests regarding minimum wage) is generally protected, although such advocacy can be subject to lawful and neutrally‑applied restrictions during on‑duty time. Notably, although protected concerted activity may involve some political speech, political activity unrelated to workplace issues is not protected under the NLRA.

  – State laws: In addition, a number of states have laws that protect certain forms of political activity. For example, some state laws specifically prohibit an employer from adopting or enforcing any policy that tends to control or direct employees’ political activities or affiliations, and under these laws, employers cannot coerce or influence employees to follow or refrain from following any political activity by threatening termination. Further, some states, such as California, Colorado, Illinois, Louisiana, New York, and North Dakota prohibit employers from firing or retaliating against employees for engaging in lawful off-duty activity, including political advocacy and speech. In these states, employers should tread carefully when making employment decisions based on off-duty conduct such as social media posts or other forms of political expression.

• Set Clear Boundaries: To make expectations clear, employers should define specific boundaries for political discussions, particularly in shared spaces or during work hours. These policies should promote a culture of respect where diverse opinions are valued, and discussions are conducted in a civil manner. Further, the goal should be to encourage employees to listen actively and engage thoughtfully, avoiding personal attacks or inflammatory rhetoric.
• Use Existing Policies to Foster a Positive Environment: Although this landscape can seem overwhelming, employers may be best served to treat political discussions like any other speech in the workplace. Instead of creating new rules, employers may be able to use existing workplace guidelines to foster a positive working environment. If political discussions become contentious or individuals feel targeted or threatened in any way, existing policies addressing workplace violence, harassment, or general respect toward coworkers may apply. Utilizing rules employees already understand to be part of the workplace demonstrates that employers are not simply trying to silence employees on political topics, but rather are promoting a generally safe and productive work environment for all employees.
• Stay Neutral and Consistent: It is imperative that an employer apply these standards uniformly. Employers may otherwise be faced with claims for disparate treatment, harassment, or retaliation under state and federal anti‑discrimination laws (which protect religious beliefs, race, gender, age, and other protected categories that can often intersect with politics). Given these pitfalls, it is particularly important that managers and supervisors understand to exercise caution (if not restraint) in sharing their political opinions with subordinates, or even more egregious, attempting to impose their opinions on them.
• Be Prepared to Address Issues Promptly: If political discussions become problematic or lead to conflicts, managers should be prepared to address the issues promptly and professionally. In addition, employers may want to provide mediation or conflict resolution resources as needed to resolve disputes and maintain a positive work environment. Further, if necessary, employers should consider providing training on how to engage in respectful and constructive political discourse. This can help employees develop the skills needed to handle sensitive topics without escalating conflicts.

Ultimately, navigating political speech in the workplace involves striking a delicate balance between respecting individual opinions and maintaining a professional, inclusive environment. By addressing these challenges thoughtfully, businesses can contribute to a more harmonious and engaged workplace where employees feel valued and respected, regardless of their political beliefs.

As Election Day approaches, remember to check applicable state and local voting leave laws to ensure compliance.