Key Considerations for Employers Relating to Political Expression in the Workplace

With the election approaching, employers are considering how to address employees discussing politics and expressing their political beliefs in the workplace.  These issues can create legal challenges for employers and can impact employee morale. It is important for employers to understand the laws impacting political and personal speech in the workplace. The following is brief overview of the key laws that affect how an employer may handle political activity or expression in the workplace.

First Amendment
The right to freedom of speech found in the First Amendment of the U.S. Constitution generally does not apply to private sector employers because the First Amendment limits only the government’s ability to suppress speech, not that of a private employer.

Therefore, there is no first amendment free speech protection when it comes to a private workplace. However, there are other laws that might provide protections to employees that employers should be aware of.

New York Labor Law
NY Labor Law § 201-d makes it unlawful for an employer to refuse to hire, employ or license, or to discharge from employment or otherwise discriminate against an individual because of certain “political activities.” Under the law, “political activities” includes campaigning for a candidate for public office, or participating in fundraising activities for the benefit of a candidate, political party or political advocacy group.

Notably, under the NY Labor Law, an individual’s “political activities” are only protected if they occur “outside of working hours, off of the employer’s premises, and without use of the employer’s equipment or other property, and, of course, if the activities are legal.”

New York Paid Election Leave Law – Time Off to Vote
On April 3, 2020, Governor Cuomo signed into law the fiscal year 2021 budget which included an amendment to the New York Election Law. The New York Paid Election Leave Law requires an employer to provide an employee with up to 2 hours (not 3 hours) of paid leave to vote if the employee does not have sufficient time to vote.

An employee is deemed to have “sufficient time to vote” if he/she has four consecutive hours to vote either from the time the polls open to the beginning of their work shift, or four consecutive hours between the end of a working shift and the time the polls close.   

An employee must notify an employer at least 2 working days prior to their intention to take paid time off to vote, but not more than 10 working days. Employers may not require employees to use their “personal” time off to vote. In addition, employers must post notices setting forth requirements for compliance with New York’s voting leave law at least 10 working days prior to every Election Day in a conspicuous place.

Seeing as though the election is coming up, we recommend reviewing your policies to ensure they are up to date with this law.

National Labor Relations Act
Employers may lawfully restrict workplace communications and activities that are purely political in nature. However, the federal National Labor Relations Act (NLRA) may be implicated if an employee’s political speech or expression relates to working conditions. The NLRA protects the rights of both union and non-union employees to engage in “concerted activities” for purposes of mutual aid and protection, such as improving the terms and conditions of employment. Thus, the protections of the NLRA can apply if an employee’s political speech or expression is related to working conditions, including engaging in conversing with each other – both in person and on social media (e.g., advocating for increased minimum wage or expanded leave laws).

A communication generally supporting a political party or candidate e.g. “Vote for Candidate X” can be prohibited in the workplace. A communication that states, “Vote for Candidate X and support an increase to the minimum wage,” would be protected speech under the NLRA because it relates to terms and conditions of employment (i.e. minimum wage).

Equal Employment Opportunity
Employers must be mindful that various anti-discrimination laws may also be implicated when employees participate in political speech or expression at work. Political speech and expression may relate to gender, sex, race, religion, disabilities, age, and other characteristics protected by Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and other state and federal anti-discrimination laws. 

Employers should emphasize respect in the workplace and should be sure to conduct harassment/discrimination prevention trainings regularly. Employers should also be cautious that corrective action or discipline based on any speech and expression may create risk of discrimination or harassment claims.

Political Apparel/Symbols
Legally, private employers may restrict speech/expression as long as it does not violate other laws. As a private employer, employers can impose (or maintain) a neutral policy which proscribes social or political messaging of any type, mitigating the impact of an assertion that it has discriminated against one group or favored another.

Employers should view this issue from a business perspective and implement a policy in a thoughtful and consistent manner. Employers who do choose to restrict what their employees wear should do so in a non-discriminatory, consistent and fair manner.

Best Practices/Recommendations
In light of the upcoming election, employers should proactively prepare to address issues that might arise relating to political speech in the workplace. Employers should review their policies and ensure that they are implementing and enforcing such policies and procedures consistently and uniformly to avoid disparate or differential treatment. Further, supervisors and managers should be advised to avoid political discussions in the workplace and to treat all complaints seriously.

Should you have any questions about how any of the aforementioned laws apply to your workplace, please contact ALG.