Be sure your organization has policies and practices in place that comply with all applicable laws.
As the United States presidential election nears, employers are likely to see more employees expressing their political views, engaging in political activity, and requesting leave to vote or to cast their absentee ballot. Here are some points to consider as you prepare for these situations.
First Amendment Protections
Employees don't have the same First Amendment protections inside the workplace as they do outside. In the private sector, employers generally have more latitude to impose reasonable restrictions on political discussions during work time. Employees, however, may have greater protections when they're off-duty.
While employers in the private sector may generally place reasonable restrictions on political discussions during work time, trying to restrict all political discussion may be impractical and could have negative effects on employee morale. Instead, consider monitoring the issue, and if these types of discussions become disruptive, interfere with work performance, or potentially violate nondiscrimination laws, respond in accordance with your company's written policies and practices. When monitoring employee conduct, treat all employees consistently regardless of their political views.
Also be mindful of Section 7 of the National Labor Relations Act (NLRA), which grants employees the right to act together to improve wages and working conditions. The NLRA applies to both union and non-union employers. Political discussions may trigger NLRA rights when they relate to employment issues, such as an increase to the minimum wage. Additionally, enforcing restrictions during non-work hours (such as breaks) or in non-work areas (such as break rooms) may violate the NLRA.
Time Off to Vote:
Most states have at least some type of voting leave requirement. In general, states handle the requirements by either granting employees:
- As much time as needed. For example, Minnesota requires employers to allow employees to take the time necessary to appear at their polling place, cast a ballot, and return to work on the day of the election;
- A specific amount of time. For example, the District of Columbia requires employers to provide at least two hours for employees to vote;
- Time off only if they lack sufficient time outside of work. For example, California requires that if an employee doesn't have "sufficient time outside of working hours" to vote, they must be provided enough time off work to enable them to vote, but only two hours of such leave must be paid; or
- Time off based specifically on the distance to the employee's polling location. For example, Nevada allows for one hour of paid time off if the distance is two miles or less, two hours if it's more than two miles but less than 10, and three hours if the distance is greater than 10 miles.
Some of these states also require employers to provide leave for election officials. A few other states provide election-official leave only. Check your state law for the requirements that apply to you.
As a result of COVID-19, more individuals are expected to vote by mail, also known as absentee voting. Depending on the state, employers may be required to provide leave during the absentee-voting process and/or state law may provide certain other protections for individuals who vote by mail. For instance, in Kentucky, employers must provide employees with at least four hours of leave to request an application for, or execute, an absentee ballot during the office of the clerk's normal business hours, or to vote on election day. In California, employers are prohibited from asking or requiring an employee to bring their vote-by-mail ballot to work or to complete the ballot at work.
Note: Some voting leave laws don't expressly address absentee voting. In such cases, you may want to consult legal counsel. In the absence of a requirement, try to be flexible and allow employees to use other employer-provided leave if available.
Employees Running for Office:
Some states expressly prohibit employers from taking adverse action against employees because they're a political candidate, an elected official, or miss time from work in order to perform duties associated with their elected position. Some states also require employers to provide unpaid leave so employees can serve as elected officials. Check your state law to ensure compliance.
Use of Company Equipment:
Employers generally have a right to limit employees' use of company equipment and resources, such as work computers, email, and bulletin boards, for non-work related purposes. This includes company resources that are used to promote candidates, political ideas, and other non-work-related information. Make sure any restrictions are applied consistently and apply to all similar types of conduct. Clearly communicate these rules to employees in a written policy.
Political Posters and Pins:
If political posters, pins, and other material that employees display in their workspaces or on themselves are a concern, you generally have the right to establish reasonable limits. At a minimum, indicate that any material that violates the company's nondiscrimination and anti-harassment policy or dress code is prohibited.
Note: Any union-related material that expresses a political view may be protected by the NLRA. For example, if an employee wears a pin that indicates their union supports a particular political candidate, you may be required to allow it. In addition, an employee's poster, pin or t-shirt that has a connection to work-related issues, such as promoting a candidate's position on minimum wage or paid sick leave, may be protected as well.
Employee Participation in Protests:
In 2020, there has been a wave of protests. Remember that in some cases employees who participate in such activities may be protected from adverse action.
Protected Concerted Activity
Under the NLRA, employees' rights to act together to improve wages and working conditions, and to discuss wages, benefits, and other terms and conditions of employment are considered "protected concerted activity". Therefore, if an employee's participation in a protest/rally is considered "protected concerted activity," the employer would be prohibited from taking adverse action against them for engaging in such activity.
Protections for Off-Duty Conduct
Additionally, some states and local jurisdictions prohibit employers from discriminating or retaliating against employees on the basis of lawful activities outside of work. These laws even protect employee conduct that employers may find objectionable. For example, Colorado and California generally prohibit employers from taking adverse action against employees for lawful activity that occurs while off-duty. If, however, the employee violates a law when engaging in political activity, such as by assaulting a protester at a rally, that unlawful conduct generally wouldn't be protected.
Some jurisdictions (including California, Louisiana and Colorado), prohibit employers from retaliating against employees on the basis of their political beliefs and activities. Employers subject to these laws need to assess whether their employee's participation at a protest/rally is a form of political activity and should check their state and local law to ensure compliance.
Even in the absence of a prohibition, it's generally not considered a best practice to make employment decisions based on lawful political activities. However, there are employers that have made exceptions out of concern the employee's conduct could create a hostile work environment or otherwise negatively impact the workplace, such as when an employee supports an organization that is considered a hate group.
Before taking action against an employee for their political activity, ask:
- Has the company conducted a thorough and impartial investigation?
- Is this employee's speech or activity protected by law?
- Did this employee's conduct violate a company policy (such as nondiscrimination, conflict of interest, or non-solicitation)?
- Does the company have a legitimate business interest in restricting the activity (such as disruptive behavior that's not protected under the law)?
- Is the employee's expression protected under Section 7 of the NLRA?
- How would taking adverse action (or not taking it) be perceived by employees?
- How has the company handled similar situations in the past?
If you are still unsure, err on the side of caution and consult with legal counsel.
Arrests and Convictions
In cases in which an employee is arrested at a protest/rally, employers may be prohibited by state and/or local law from taking adverse action against employees because of arrests or arrest records. In addition, the Equal Employment Opportunity Commission (EEOC) has stated that taking an adverse employment action against an employee solely because of an arrest record may result in a violation of nondiscrimination laws. An arrest, however, may in some circumstances trigger an inquiry into whether the conduct underlying the arrest is job-related and justifies an adverse employment action, according to the EEOC.
Even if one of your employees is convicted of a crime that occurred at a protest or rally, the employee may be protected from adverse action unless the conviction relates to the individual's job duties. To comply with federal law, the EEOC recommends that employers conduct an individualized assessment (an evaluation of the facts surrounding the offense, history of offenses, rehabilitation efforts, and other factors) before taking an adverse action against an employee on the basis of a criminal record.
Certain state laws may restrict or prohibit employers from attempting to influence employees' votes or political activities. Make sure you understand the laws that apply to your business and ensure that your company does not violate these rules.
Review and understand your rights and obligations regarding political activity and have policies and practices in place that comply with all applicable laws.
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This article was originally published as an "ADP HR Tip of the Week" which is a communication created for ADP's small business clients.
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