HR Trumps political speech at work
You overhear them in the dining rooms, kitchens, and break rooms around this time every four years or so- sometimes more often in off-cycle election years. Political chit chatter between your employees. Sometimes, they even get heated and you begin to hear voices being raised. You might even notice employees avoiding others at the office who have expressed different political views as their own to “avoid trouble”.
From a Human Resources Management perspective, it’s important that you understand how to react. Political discussions at work can impact morale, teamwork, communications, and may even open up your company to liability if arguments get out of hand. My advice to you-
Don’t allow employees to play the “free speech” card at the office when you have a trump card in the law.
That’s right, I said it. Your employees’ free speech protections when it comes to these conversations ends at your company’s door step. The First Amendment of the constitution only guards against censorship by the Government. There is no Federal law protecting the expression of political views at private employers.
I stress private employers because while private employers can fire an employee whose speech they dislike- the First Amendment governs the circumstances under which public employers may discipline employees for their speech. The Supreme Court has also ruled that public employee speech involving matters of “public concern” constitutes protected speech under the First Amendment. Needless to say, there are many an argument that can be made for what vaguely constitutes public concern.
What Must You Know
From a political standpoint, here’s what you should know if you are a private employer conducting business in South Florida. In Florida, it’s a felony to “discharge or threaten to discharge any employee in his or her service for voting or not voting in any election, state, county, or municipal, for any candidate or measure submitted to a vote of the people.” Don’t ever fire or threaten to fire an employee for exercising their right to vote or to abstain from doing so.
Additionally, Political affiliation, sexual orientation, gender identity or expression and age under 40 are prohibited under the Broward County Human Rights Ordinance. Yes, it is illegal to discriminate against someone when making a hiring decision in Broward county because of their political affiliation- don’t do it.
While you can limit political speech at the office as a private employer, do remember that the National Labor Relations Act states that “private employers cannot prohibit discussions about workplace conditions.” Translation, there are limits to your powers of silencing political speech at the office. Say for example, two or more of your employees are debating in the lunch room which political candidate or party would benefit them most as workers- they have a right to that conversation. In the event of a claim in this instance, they would argue it was concerted activity about workplace conditions- and more likely than not you would lose that case.
Got a question about the political chatter at your office during this election season? Don’t tackle it alone, reach out and let us help.