By Thomas A. Cox, Jr. with Epstein Becker Green
(Thomas A. Cox, Jr., is a Member of the Firm in Epstein Becker Green’s Labor and Employment and Litigation practices, in the Atlanta and Washington, D.C., offices. His litigation experience is diverse, ranging from the defense of employment disputes at all levels and on behalf of employers to commercial actions, regulatory matters, and disputes related to statutory interpretation and implementation.)
Whether you hope that President Obama receives a second term, or whether you are looking to go in a different direction with Mitt Romney — everyone has an opinion about Campaign 2012. There is at least one certainty for management-- your employees will generally not check their political opinions at the door when they come to work. What can business owners, human resource professionals, and management do to prepare for the possible impact of political activity in the workplace? Can an employer do anything to stem the tide of passionate and strong political expression in the workplace? Welcome to Campaign 2012. Corporate contributions and the potential marketplace implications of the “corporate identity” being affiliated with a specific political candidate or party are also a factor. Advance preparation is key.
POLITICAL EXPRESSION AT WORK
One of the commonly accepted rules of corporate business etiquette is that political discussions in the workplace are generally disfavored. With the November elections rapidly approaching, along with a highly energized and fragmented electorate, can employers simply ban political discussions and political activities in the workplace? On the other hand, do employees have the right to engage in political expression in the workplace? There is still the question of the First Amendment – does the First Amendment guarantee the right to engage in political discussion at work?
For most Americans, the simple answer is no. In most states, workers are employed at the will of the employer. In states that recognize the at-will employment doctrine, employers may discharge an employee at any time and for any reason, so long as the decision is not based on unlawful discrimination based on a legally protected status such as race, color, sex, national origin, religion, age, disability, and genetic information. Engaging in political activity or expression in the workplace is not currently viewed as legally protected activity in the workplace, for the most part. Therefore, in most instances where the at-will employment doctrine is recognized, employers may implement an adverse employment action, even if it is based on political affiliation or activity.
The First Amendment provides no protection for private sector employees engaged in political activity or expression in the workplace. The First Amendment provides that Congress shall make no law abridging the freedom of speech or the right of the people to peaceably assemble and petition the government for redress. Based on its specific language, the First Amendment only protects individuals against government action. Employees in the private sector generally have no First Amendment right to express political views in the workplace. There are a few states, including, among others, California, Connecticut, South Carolina, and Washington, where there is limited First Amendment protection against curtailing political activity.
But what's the harm with a little political talk in the workplace? Because political issues can stir up intense emotions, potentially divisive topics, such as race, national origin, and religion, may end up forming the basis of political discussions. Such topics could lead to allegations of bullying and the creation of a hostile work environment.
Employers should monitor the workforce for that type of unwanted behavior and review—well in advance of the political campaign season—their company policies and procedures related to bullying and a hostile work environment as well as all policies requiring employers to provide a safe workplace. Any allegation of bullying and harassment should also be swiftly and thoroughly investigated. Finally, because the majority of states require employers to allow employees time off to vote on Election Day, some additional advance planning may be required. Just like the candidates, now is the time for management to prepare for the rigors of Campaign 2012.
In addition to employees engaging in political activities and expression in the workplace, corporations themselves may now engage in the political process by engaging in political contributions. This phenomenon is also seen in the rise of the Super PAC. In its landmark decision Citizens United v. Federal Election Commission, 558 U.S. 310, 130 S.Ct. 876 (U.S., 2012) the U.S. Supreme Court held that corporations, unions and individuals may engage in expressions of free speech by making political contributions. Specifically, the Court found that political speech does not loose First Amendment protection simply because its source is a corporation.
Although the dispute that ultimately materialized in the Citizens United decision can trace its origins back to the Bipartisan Campaign Reform Act, it is unclear whether some of the worst fears of many opponents of Citizens United will materialize, namely that campaigns will now be awash with corporate money or that corporate contributions will make the voice of the people meaningless. There does not yet appear to be a clear answer.
In any event, this strange marriage of politics and the workplace appears to be here for a while, at least into the foreseeable future.