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Election Talk in the Workplace: Can Employers Tell Employees to Leave Their Opinions at Home?

November 1, 2016

By Kara Backus

With the general election right around the corner, employers might be wondering how to manage the sometimes emotional and confrontational conversations among employees that can lower morale and productivity.  Here are a few quick tips:
 
  1. There is no First Amendment right to free speech in the workplace of private employers.  This can come as a surprise to employees, some of whom believe they have the right to free speech at any time or place.  In fact, if you are a non-governmental employer, you may place restrictions on political speech in the workplace, but be aware that certain state laws protecting political speech may apply.
     
  2. Review state law speech protections in your state.  For example:
 
  1. In Oregon, employers are prohibited from disciplining or taking other adverse employment action against an employee for refusing to participate in an employer-sponsored event in which the employer shares its political views, or from disciplining an employee as a means of encouraging such participation by an employee.  Employers are also prohibited from exerting undue influence over issues such as voter registration, voting, political contributions, or political candidacy.
 
  1. In Washington State, employers are prohibited from discriminating against an employee for the employee’s position or voting record regarding candidates, ballot propositions, political parties or committees.  It is also a criminal act to interfere with or to intimidate a voter for signing or not signing an initiative or referendum.
     
  1. If you are a governmental employer, review state laws prohibiting political activity in the workplace by public employees.  For example:
 
  1. In Oregon, public employees are prohibited from engaging in any political activity on the job during working hours. This includes promoting or opposing an initiative, referendum or recall petition, candidate, political committee, or ballot measure. In addition, elected officials may not, in the role of a supervisor, ask a public employee, whether on or off duty, to engage in any political activity.
 
  1. In Washington, state employees may not use state facilities, including office space, supplies, or state employees’ time for the purpose of assisting a campaign for election of a person to an office or for the promotion of or opposition to a ballot proposition.  Even de minimis use is prohibited.
     
  1. Be aware that the National Labor Relations Act prohibits public and private employers from regulating communications by rank-and-file employees regarding wages, hours, and other terms of employment, regardless of whether the employees are unionized.  Because discussions about political candidates for office or ballot measures often involve topics like working conditions and worker pay, employers must be careful not to regulate this type of speech.
 
  1. If you think political speech or activity negatively impacts your workplace, consider implementing a non-solicitation policy that prohibits all forms of solicitation—including political campaigning—during working time.  Be careful, however, to carve out the right to discuss conditions of work and other relevant state law speech protections.  It is also crucial that enforcement of any such policy is done in a neutral and consistent manner so as not to appear biased in favor of or against any particular political position.
 
  1. Seek advice from counsel before disciplining an employee for engaging in political speech, whether inside or outside the workplace.
     
Please contact us if you have any questions about the legal aspects of political speech or activities in your workplace.
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