Political conflicts in the workplace will only grow as we near election day, and this means human resources professionals and in house counsel need to hone their conflict resolution skills. Resolving political conflict in the workplace is a bit more nuanced than resolving ordinary workplace slights, requiring legally compliant de-escalation. We thought a few guidelines – tested against some real-life scenarios – would be a useful campaign stop for those charged with managing these issues. Here’s a teaser: you learn a company supervisor has just invited the supervisor’s entire team to a weekend rally for [insert any candidate’s name here]. What if anything do you do that doesn’t place you (and the company) squarely within the bullseye of our sharply divided political environment?

With the 2024 presidential election season in full swing, it can often feel like every conversation – no matter how mundane or innocuous – veers into political territory. While many people may brace themselves for potential discomfort around the dinner table, employers face unique concerns. Regulating employee conduct in the workplace must be consistent with the myriad workplace- regulations (many jurisdiction-dependent) relating to political and other expression. And the identity politics of today, which in turn provoke deeply held beliefs, can turn “harmless” political discussions into tense and difficult conversations that can easily venture into legally dangerous territory about race, gender, and other protected workplace matters.

Though the First Amendment protects an individual from government intrusion into their right to speak freely, that protection does not extend to private employment (except for limited circumstances applicable to some National Labor Relations Act and other specially protected speech). The matter does not simply end there, of course. Like many workplace matters, employers must determine whether to implement policies relating to political speech and, just as importantly, how to train supervisors in implementing and evenhandedly applying those policies. While some employers, like Google, have famously come out staunchly against all political discourse in the workplace, others attempt to balance their employees’ interests in speaking out on issues they care about against maintaining a cohesive and collegial work environment that is productive and welcoming to all.

Now, as the election season officially kicks into high gear, employers should consider adopting certain policies (or review existing ones) relating to political discussions and speech in the workplace. As always, adopting policies necessarily includes guiding supervisors who are faced with addressing difficult interpersonal workplace conflict issues. We provide some guidance for human resources professionals relating to those policies and training below – and how those policies might be applied to some very tricky politics-motivated conflicts.

1. Does the Company have policies regarding speech in the workplace and use of company property for political purposes?

While no federal law broadly protects an individual’s right to speak in the context of a private employment relationship, most employers already have policies that implicate political speech in the workplace (whether they know it or not). Those policies might include office dress codes (does the code permit clothing that advertises products or slogans?), professionalism expectations, and non-discrimination and harassment policies. Of course, merely having policies is insufficient for an optimally operating workplace – conducting supervisor training regarding those policies on a regular basis is also a best practice (particularly as those policies might apply to political disputes).

2. Does the Company invest in supervisor training regarding managing interpersonal conflict?

Conflict in the workplace is natural and expected; but how supervisors address that conflict depends upon the company’s culture, training and of course each individual’s conflict resolution capabilities. Ensuring supervisors have clear guidance about what gets reported, when and to whom is critical. Understanding the difference between basic disputes and disputes that touch upon potential legal issues (such as workplace harassment, safety and other concerns) is key to ensuring that the right sort of communication is conveyed to the right people. Training should include how to handle a disgruntled employee complaining about a co-worker voicing their political opinions, how to manage supervisors who voice their political beliefs in meetings, and procedures relating to using company communication platforms to promote political opinions or candidates. 

3. Know when it’s time to involve legal.

The rise in identity politics means that speech can quickly and easily implicate race, gender, sex, religion, national origin, and other legal matters– all of which could create potential employment liabilities. While a simple disagreement over clothing promoting a certain political candidate presents an ideal opportunity for an HR representative to intercede and offer resolution, if that disagreement leads an employee to, for example, tell a co-worker to “go back where [they] came from,” a discrimination claim undoubtedly arises. When in doubt, it’s never a bad idea to be overly cautious and communicate with counsel regarding how to proceed in a manner that will de-escalate and make the employees feel like they are being heard.

4. Proactivity – and Messaging – is Critical.

No matter the policies you put in place, communicating often and early about those policies with employees is critical to ensure they are aware of an employer’s expectations. Consider sending a company-wide communication now reminding employees of workplace policies applicable to political speech. Conducting a training session for supervisors on handling potential conflict is another proactive approach. There’s no one size fits all solution, but making sure that employees know the rules and standards they will be held to may prevent potential interpersonal conflict, simply by ensuring this is top of mind for all employees.

5. Offer Employees Training and Expectations About Professional Communications.

Workplace conflict stretches far beyond political discourse. Now is a time to consider offering employees general training on how to handle interpersonal conflict and professional communications. While this may help avoid heated political discussions from devolving in the office, it can also have the added benefit of generally improving employee relationships.

6. Familiarity with State and Local Laws.

Even though the law doesn’t generally protect speech in the private employment context, some states and cities provide protection for certain types of speech in the workplace. Washington D.C., for example, prohibits employers from discriminating against an employee’s actual or perceived “political affiliation.” Connecticut extends First Amendment protections to private employment relationships, prohibiting employers from taking adverse action against an employee for engaging in speech that would be protected by the First Amendment. New York’s “off-duty conduct” law bars private employers from firing (or refusing to hire) someone for certain outside “political” and “recreational” activities, and California makes it illegal for employers to impose “any rule, regulation, or policy” that prevents employees from engaging in political activity or speaking out on matters of public concern. Awareness of all relevant local laws is key in both ensuring legal compliance and maintaining a productive workforce. 

With basic policies in place, what kind of practical guidance can an employer provide to supervisors handling sticky workplace political conflict? Here are a few scenarios that may provide some guidance – or at least provide some ideas for responding to a few common but difficult situations.

1. An employee complains that their co-worker came into work wearing a “Make America Great Again” hat.

First, consider if any company policies apply. Does your dress code mention anything about clothing with slogans or advertisements? If so, the employee in question can be gently reminded that the hat they wish to wear in the workplace conflicts with the policy. That same employee can also be assured that this policy is balanced in nature – and wearing a “Kamala for President” shirt would be subject to the same rule. It is important to remind managers that they need to ensure their own personal politics aren’t a barrier to the uniform enforcement of workplace policies.

2. You get an office-wide email from a vice president urging employees to donate to the Kamala Harris campaign.

Is there a company policy regarding using company systems for personal matters? If so, informing the individual of this policy may be the best approach. Moreover, it might be a good time to gently remind the individual that any type of solicitation on behalf of any candidate presents a somewhat coercive choice to subordinates who worry that their failure to contribute could detrimentally impact their career (“donate or suffer the consequences”). This is an excellent time to remind higher level managers of the impact they have on their subordinates and the importance of keeping the manager’s politics out of the workplace because of its potential impact on perceived performance management. 

3. A supervisor sends a Slack message inviting the team to weekend rally for a candidate.

It may seem natural to conclude that activities outside of the workplace necessarily means workplace policies don’t apply (the answer is context-dependent). Again, it is important to guide supervisors regarding the implicit pressure that accompanies any supervisor request – including one that may seem innocuous and non-work related. In addition, a request like this one could potentially implicate a state or local law that protects an employee’s freedom of expression outside of the workplace. Reminding supervisors now of these sensitivities and concerns – before they ripen into conflict – is a best practice.

4. An employee complains that their co-worker has a “Blue Team” bumper sticker on their car parked in the company lot.

Setting aside the ambiguity of the message this slogan conveys (which could just as easily be a reference to a sports team), at some point managers need to understand that not every workplace political slight requires action, other than informing the complaining employee that the individual has been heard and notifying them whether action will or won’t be taken. A bumper sticker on a car parked in a company parking lot presents a different level of sensitivity than an employee wearing an article of clothing espousing a political point of view within the closed confines of a workplace. At some point it is natural to draw some reasonable lines relating to expression. And permitting an employee to advertise a political affiliation on the employee’s automobile (if not driven for work-related purposes) could be seen in many circumstances as reasonable. Here is where a brief conflict resolution session might be valuable for the complaining employee. 

5. An employee asks for time off to participate in a voting drive (and wants to encourage others to join them).

Policies relating to workplace behavior do not extend to an employee’s time off (unless of course that conduct implicates the workplace) and, as discussed earlier, some states have explicit protections on an employee’s right to speak outside the workplace free from employer intervention. By the same token, while employees are free to use their time off as they see fit, you should remind them that others may not share their political beliefs and should caution them against pressuring others to join, especially if the invitation is being extended by a supervisor (and the implicit concern that failing to accept it will somehow impact the employee’s performance). Policies on the other hand that allow employees to take time off (paid or unpaid) as they see fit to work on voting drives or other civic activities relating to the election do not implicate these issues unless managers attempt to influence the use of that time (such as suggesting employees use such time for a particular candidate or political party).

Navigating politics in the workplace understandably causes employers concern, but early communication, clearly defined policies, and uniform implementation can equip your human resources team with the tools to confront difficult workplace conflict. Should you have any questions or concerns, the Mintz Employment Practice (which approves of this message) is available to review your office’s policies and consult on how to manage particular conflicts as you navigate the election season.