What, if anything, can an employer do if politics and political discourse begin to disrupt the workplace? Post-election anxiety and tensions continue to run high and corresponding political discourse is winding its way into the workplace in one form or another. Can an employer squelch political discussion? Should they? What about employee political action outside the workplace?

An employer has the right to maintain good behavior and order on their jobsites. Many employer policies address bad behavior by promoting positive behavior and a productive workplace.  Rules such as: “Do not use abusive, threatening or coercive behavior with other employees,” “No fighting,” and “No harassment or violence of any kind” are all indirect policies intended to curb bad behavior.

But what about speech and behavior that is based upon political discourse and activism, particularly that which may reflect badly on the employer? What can an employer do if word gets back that one of your employees is a member of a group that promotes an unpopular and even radical political agenda?

Can this employee be questioned and even fired for their overt political beliefs? Part of the answer depends on the state the employer is doing business in. In the state of California employers are prohibited from taking adverse action against and employee for legal activities off-the-clock and may not coerce employees, discriminate, retaliate or take any adverse action because they have engaged in political activity. Michigan does not have such laws on its books. In fact the closest thing employers are prohibited from doing regarding discrimination because of politics is they may not (at the pre-employment stage) ask about organizations the applicant may be a member of unless it is job related. Especially if the organizations will elude to the person’s race, religion, national origin or other protected class characteristic. This information tied to an adverse employment decision can add up to a discrimination complaint.

There are several federal laws that may impact a decision about taking any adverse action against an employee for political action or speech. The National Labor Relations Act (NLRA) prohibits employers (union and non-union) from interfering with an employee’s right to engage in concerted activities for the purpose of mutual aid or protection. This has been broadly held to mean that the employee is protected if engaged in legal and political activity that could be construed to relate to labor or working conditions. This has been expanded to include rallying for sick leave, minimum wage or immigration reform. All popular issues in the political world today.

Based on the above broad protections under the pro-worker NLRB, employers have been reviewing their employee handbooks for the last few years purging any rules that may chill an employee’s right to express and exercise their rights under the NLRA.

Below are some other suggestions to manage employee political discourse from the law firm Fisher & Phillips:

1.     DO evaluate motives. Political discussions in a place of work can expose sharp differences about irrelevant issues, which can create obstacles that make functioning together difficult. It may be wise for all involved to ask, "Why risk it?”

2.     DO ensure policies are objectively developed and enforced. Regardless of individual political views, policies regarding politics in the work place must be administered equally and without bias. While it’s okay to allow some forms of traditional political expression, formal meetings to discuss politics and heated discussions bordering on harassment are different stories.

3.     DO monitor political discussion. What employers aren’t aware of can hurt them. It’s the responsibility of the employer to be well-informed about what types of political conversations or arguments occur at work and work-related functions.

4.     DON’T push political agendas. Employers and managers can find themselves in a heap of legal trouble if they spread propaganda. Heated political arguments can cause tensions to erupt leading to undesirable hostility in the workplace.

5.     DON’T criticize, joke or jab. Employers should beware of inappropriate comments about political affiliations. Even subtle jokes or jabs can make some employees feel like targets. Comments like, "You’re only supporting her because she’s a woman" can turn into a world of trouble for employers.

6.     DON’T solicit funds. Employees should never feel coerced into supporting or contributing to a candidate as a condition of employment. Even if employees are doing the soliciting, dependent upon the circumstances, such requests can be illegal.

7.     DON’T gloat. When all is said and done and the votes are counted, resist the urge to brag about a win―it will only cause discomfort.

So, are employers held hostage to ugly and obnoxious politics in the workplace? Not necessarily. Lettler Medelson PC recommends keeping decisions to discipline or terminate focused on the job performance of the individual employee and the business needs of the organization. Keep an eye on whether the political discussion and activity interferes with the operations of the business. Proceed with caution, but know that ultimately the employer controls the workplace and may control behavior that is in it.

Note: ASE Members have access to each state’s laws in its CCH Answers Now on-line library 24/7 for researching state laws that may impact their operations throughout the US.  The CCH Answers Now virtual library can be found in your dashboard.

Sources: Lexology; Littler Mendelson PC 1/20/2017; Fisher & Phillips LLP; CCH Answers Now