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Navigating Politics in the Workplace

By Keystone’s HR Team

With so much political unrest around the world, political conversations in the workplace are hard to avoid. Now, with election time around the corner, these conversations are even more likely to happen. That has a lot of employers worried. In fact, according to Littler’s Annual Employer Survey, 2024 Report, 87% of employers are concerned about conflicts that may arise in the workplace relating to politics this year.

Since unrestrained political discussions and activities at work can affect productivity, morale, and cause legal claims, it’s important to know some best practices for managing politically charged issues, as well as the rights of both employees and employers relating to this topic.

Freedom of Speech

The First Amendment provides U.S. citizens with the right to free speech. However, this right applies to government action which means only employees working for a government employer have a right to free speech in the workplace. Private employers therefore have the right to prohibit speech relating to politics in the workplace with limited exceptions.

There are a few instances where private employers may be prohibited from taking certain action relating to politics in the workplace. For instance, at least eleven states have laws that prohibit employers from disciplining, or otherwise restricting, employees from expressing their political affiliations or views or being affiliated with a political party. Other states, like California, have taken those protections further by extending protection to advocacy for social justice or other issues. Connecticut extends First Amendment protection to speech by employers of private companies meaning employees in that state have the right to freedom of speech at work (which would include talking about politics with some limited exceptions).

Protections Under the National Labor Relations Act

The National Labor Relations Act (NLRA), which applies to both unionized and non-unionized non-supervisory employees, is a federal law that restricts an employer’s right to limit non-supervisory employees’ communications about wages, hours, and other terms or conditions of employment. Specifically, the NLRA protects the rights of employees to engage in “concerted activity” which is when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment. A single employee may also engage in protected concerted activity if he or she is acting on the authority of other employees, bringing group complaints to the employer’s attention, trying to induce group action, or seeking to prepare for group action. This law is designed to allow employees to seek to improve their working conditions and extends outside of the employer-employee relationship. A political protest or rally may be considered a protected concerted activity where (1) the political speech or conduct is concerted; (2) there is a close nexus between the political expression and employment; and (3) it involves terms and conditions of employment under the employer’s control. In those cases, the employer would be prohibited from taking adverse action against participating employees for engaging in such activity.

Potential for Claims under Discrimination and Harassment Laws

Federal laws prohibit discrimination and harassment in the workplace. However, those protections don’t extend to politics or political affiliation. Despite this, political conversations in the workplace can lead to claims of discrimination or harassment. For instance, if the political discussion involves race, color, sex, sexual orientation, gender identity, national origin, religion, age, or disability, anti-discrimination law claims could arise. In addition, a negative employment action shown to be based on a protected characteristic, such as those referenced above, can lead to these claims. Lastly, there are some states that prohibit some form of political activity discrimination in the private sector, such as Arizona, California, Colorado, Georgia, Illinois, Iowa, Louisiana, Massachusetts, Minnesota, Nebraska, Nevada, New York, North Dakota, Ohio, Oregon, South Carolina, Utah, Washington, and West Virginia, as well as Washington, D.C.

Social Media and Politics

In today’s day and age, it’s hard to find an individual that is not using social media. In addition to using it socially, many use it to express their political views. There are a few protections that employees have relating to politics and social media that employers should be mindful of. First, at least twenty-six states have social media privacy laws that place certain prohibitions on employer access to an employee’s non-public social media posts. For instance, these laws prohibit employers from taking action such as requesting or requiring employees to grant access to their personal social media accounts, including requiring employees to disclose the login information to their personal social media account or accepting a friend request from their employer. If an employer wishes to discipline an employee for a political social media post, it would be illegal to do so if the post was obtained in violation of these laws.

Employers should also be aware that both NLRA rights and rights to be free from certain discrimination laws may also be implicated when an employee makes a political post on social media.

So, what can you do?

  1. Work with an expert to craft an enforceable policy regarding political activities in the workplace.

  2. Encourage your leaders not to discuss politics in the workplace and educate them on how to maneuver through any challenges that may occur from political conversations between employees. In addition, educate them on the laws relating to this topic.

  3. Prepare your organization and its leaders to quickly and effectively address any disruptions that occur from political communications and activities.

  4. Have a designated department or person (such as Human Resources) for employees to contact for any concerns.

By being proactive, you can lower the risk of employee claims and contribute to a positive workplace culture.

If you are an employer with questions about any HR issue, contact our Risk Management Division by phone at 855-873-0374 or by email at hrhelpline@keystoneinsgrp.com. We will be happy to help!

Disclaimer: The information provided on this website is for informational purposes only and not for the purpose of providing legal advice. Use of and access to this website does not create an attorney-client relationship between Keystone’s Risk Management Division or our employment attorney and the user or browser.