The 2016 Presidential Election has resulted in some of the most polarizing political rhetoric from both Democrats and Republicans in recent history. And thanks to constant coverage by news outlets and social media, employees are constantly plugged in to the latest statements by Clinton and Trump. It seems natural then that political discussions would spill over into the workplace. Depending on the type of business, employers may be wondering if they can prohibit or regulate when employees can talk politics.

The answer is yes employers can, but with some exceptions. The First Amendment of the United States Constitution grants the right to free speech, which does include political speech. However, this protection from interference applies only to state action. Private employers are therefore allowed to prohibit political speech during work hours.

Employers should remember that if they want a policy prohibiting political speech at work, the policy needs to be clearly written, either in an employee handbook, posted in a prominent location, or both. Additionally the policy should be uniformly enforced. This means that regardless of personal political viewpoints, employers should enforce the prohibition to all political viewpoints, not just ones they disagree with. Additionally, if anyone, including a CEO or president, violates the policy and is not disciplined, then the policy loses its force.

It is not just inside the workplace that an employer can regulate an employee’s political speech. There have been instances where employees have been terminated because of their political speech outside of work. This has included termination based on political bumper stickers, bracelets with political mottos, blog posts, and in one instance, who an individual voted for (although that one resulted in a settlement out of court for an undisclosed amount). However, employers should tread carefully when considering whether this type of enforcement is something that would reflect well on their business.

Employers should consider the pros and cons of limiting or prohibiting political discussions at work. Just because employers have the ability to regulate political speech does not mean that they should. Employers should evaluate their workforce, and determine the effect a ban or limitation on political speech may have on their employees’ morale. Additionally, employers need to be aware they cannot interfere with union solicitation at work, which can often resemble political speech. For example, employers cannot ban employees from wearing buttons supporting a union organization or election, because it is protected under the National Labor Relations Act.

When considering whether to have a policy banning or limiting political speech at work, remember, Joseph, Hollander & Craft is here to help navigate any questions or concerns.

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