While it seems like elections and politics have been on-going rather than every two or four years, we are now entering the actual election year, and employers should prepare themselves to address possible employee dissent, rancor, or worse.

How should employers be prepared and what can they legally do if this year’s elections result in some arguments in the workplace?

In a pretty thorough article published by the law firm Fisher Phillips LLC, the authors, Leanne Lane Coyle, Rick Grimaldi, and Joshua D. Nadreau provide some good planning suggestions and legal information around the employer’s rights.

First, employees do not have the complete right to say whatever they want. In a setting between private, non-governmental persons or entities, the First Amendment does not apply. This means employers have a pretty thorough right to control speech on their premises but beware of speech about “protected concerted activity” under the National Labor Relations Act (NLRA).

Protected concerted activity speech involves communications for the “purpose of initiating, inducing, or preparing employees for group action” as to wages, benefits. or terms and conditions of employment (work schedules, job security). This speech would be protected. But if the speech is about candidates, political parties. or political activity in general, it is not protected, and the employer can address it if it gets out of hand.

Phillips Fisher also advises to be careful that worker speech, and in some cases the wearing of political insignia can be protected. An employer’s dress code that prevents the wearing of political insignia is legal as long as the policy is practiced consistently. Oh, and again if what the worker is wearing supports union organizing, in that case the employee’s rights may supersede the employer’s policy unless there is a very solid business reason for prohibiting that. The pro-union National Labor Relation Board could be brought in on that.

If an employee wants to engage in distributing political literature in the workplace, can the employer stop that? Yes, the employer can. But again, do it consistently. An employer will also most likely have to allow political solicitations during breaks and meal periods. Again, it is recommended that if the discussions get out of hand and are disruptive, the employer should do a little investigation into the content of the speech to distinguish it from union related activity before implementing any discipline.

What else should be paid attention to? Fisher Phillips advises employers to train managers and have the HR department or some position of authority on alert to get involved if talk gets out of hand.

Remind employees about respectful use of social media and company policy about using company computers or systems if they are restricted from certain communications on that equipment. But if employees are using their personal social media accounts, a company’s policy is pretty limited to restricting representation of the company in those communications. This is a tough area for restrictive policies. Employers do have a right to act if an employee’s off duty behavior reflects upon their organization. If social media speech implicates the employer and is brought to the attention of the employer, investigate the context to ensure that speech was not protected under state law or the NLRA.

What about an employer’s right to support a candidate or political party? Fisher Phillips states private employers have the right to support a specific candidate or political cause. They should probably avoid recommending how an employee should vote and be careful about requiring employees to attend a political meeting on work time. Certain states prohibit “captive audience” meetings involving the employer’s opinions on politics or religion.

What about allowing employees time off to vote? Though federal law does not require this, many state laws do require employers to allow employees time off to vote. Michigan is not one of them. ASE’s Holiday Schedule and Practices Survey found just under 5% of employers provide for a paid election day off. Anecdotally, we often hear about employers being flexible on election day as to time off to go and vote.

If your company wants to provide time off to vote, put that policy in writing and in your handbook. Fisher Phillips advises the policy address certain important information.

• Whether voting leave is paid or unpaid
• How much time an employee can take
• Whether employees are entitled to leave if the polls are open for a significant period before or after their shift
• Whether employees must provide advance notice before taking leave to vote
• Whether employers can designate voting hours
• Whether you can ask employees to provide proof of voting; and
• Whether the right to leave includes early voting or registering to vote

As the election year starts getting hotter, be ready to respond to workplace situations that may get out of hand.

Source: Fisher Phillips LLC Election Season in the Workplace: Employers’ Essential FAQs for 2024 HR Tracker (1/19/2024)