In a post last month, I shared some tips for managing political tensions in the workplace from a human resources perspective. But with just eight weeks left until Election Day, and with escalating political rhetoric being an inescapable fact of daily life, what constitutes permissible and prohibited political activity in the workplace from a legal perspective?
I had the opportunity to discuss that question at length yesterday with R. Scott Oswald, managing principal at the Employment Law Group in Washington. One takeaway from the discussion was that if you work for a private-sector company, and you think the First Amendment guarantees your right to express your political views in the workplace — even if it’s in as unimposing a manner as displaying a Clinton or Trump bumper sticker in your cubicle — you’re likely in for a surprise.
We’ll get to that potential eyebrow-raiser in a moment. First, it’s important to lay the groundwork with what Oswald said is an essential first step for private-sector employers — having a clear policy that defines what is and is not permitted:
The key is to ensure that there’s a clearly articulated policy, in writing; that the policy is disseminated to all employees; and that there is consistency in enforcement. What I regularly see is that most employers don’t have these policies in place, and when election time comes, they don’t have anything to fall back on. For a lot of tech companies, it’s difficult to do — they don’t want to stifle individuals’ creativity. They don’t want to weigh them down with policies and protocols. But this is an area where it absolutely is a best practice for the tech world, and indeed for employers in general.
So what do employees have the constitutional right to do in terms of expressing their political views in the workplace? A lot depends, Oswald said, on whether you work in the public sector or the private sector:
Public-sector entities are covered by the Constitution of the United States, and the Constitution requires certain kinds of political freedoms that may not be required in the private sector, except in certain states that have protections. The first thing that has to be determined is whether there is some sort of overarching reason for the employer to discriminate, based upon political affiliation.
This can be the case with certain kinds of political positions in the federal government, and at the state government level. For instance, the governor of a state has the absolute right to fill certain agency positions with people who are of the same political persuasion — he or she can literally discriminate, based on politics.
In the private sector, Oswald said, employers are free to make decisions based upon political affiliation, so long as there isn’t a state law that prohibits it.
For example, in Washington, D.C., we have the District of Columbia Human Rights Act, which defines, among other protected classes, political affiliation. So in the District, that means belonging to or endorsing any political party — a private-sector employer may not discriminate based upon political affiliation.
Other states, including California, New York, and Connecticut, have similar concepts in their laws, so in those states, there are restrictions on what an employer can do. But in these jurisdictions, what you can do is have a policy that is neutral on its face, that prohibits political expression in the workplace.
So private-sector employers, in D.C., for example, can prohibit individuals from having certain kinds of presidential candidate buttons. The key is that it has to be neutral — you can’t allow a Hillary button and disallow a Trump button. But you can prohibit buttons, wall posters, and all of those sorts of things, so long as it applies to all political candidates.
As far as soliciting political contributions in the workplace is concerned, Oswald said in the public sector it’s prohibited at the federal level by the Hatch Act; at the state level, most states have laws that pick up where the Hatch Act left off. But he said there’s nothing inherently wrong with it in the private sector:
We hear all the time about companies that at least encourage their employees to be involved in certain kinds of political fundraising events. So there’s nothing that prevents a company from soliciting contributions from its employees. But you can see how there is at least the possibility that the employee could say, ‘I felt very uncomfortable with this.’ So in those states that prohibit discrimination based on political affiliation, that could create a problem for a company.
The key, to the extent that a company wants to permit it, is to have a very clear policy that states that it is entirely voluntary; that an individual has no obligation to participate; and that it creates some kind of anonymity for employees so that the person making the solicitation doesn’t know who is giving — and, more importantly, who is not giving.
By the same token, Oswald said, private-sector companies have every right to prohibit their employees from soliciting political contributions in the workplace:
Many companies prohibit it because of the potential for employees to feel put upon. But again, the key is that it has to be neutral on its face; it has to be disseminated to all employees; and it has to be fairly and equally enforced. An individual has no First Amendment right to solicit employees in a private workspace for political contributions.
I brought up the fact that a number of high-profile tech executives, including Meg Whitman of HP, Sheryl Sandberg of Facebook, and Mark Benioff of Salesforce, have publicly endorsed Hillary Clinton, with Whitman going so far as to publicly label Donald Trump a “dishonest demagogue.” I asked Oswald if he sees any inherent problem with these endorsements, in terms of fueling divisiveness in their companies, or creating a perception among employees that if they want to advance their careers, it’s in their best interest to support one candidate over another. He said the latter concern is the one that’s the real challenge for these executives:
If you’re Meg Whitman, you’re probably thinking, ‘I want to take a position — I’ve been a political candidate myself, I feel strongly about the subject, I don’t want to sit on the sidelines and do nothing. But how do I make sure that my personal endorsement of this candidate does not create some kind of chilling effect in my organization, such that individuals who might have a different view than I have, don’t feel welcome?’
So the issue for these executives is whether their endorsement in any way discourages those individuals who are working for the company from feeling that they’re fully vested in the company — that’s the challenge they face. It’s an enormously difficult conundrum for these tech executives. Tech workers, especially in smaller companies, may not be getting paid a whole lot in many instances, but they’re there because they believe in the product and in their leadership. Now, their leadership has just told them that there might be a real problem with their political affiliation or beliefs.
And then there’s what Oswald called “the new frontier” — dealing with the issue of whether employees can post political commentary on social media:
The scenario is, you’re putting political commentary on your Facebook page — you’re not doing it in the office, but you may be doing pretty much the same thing, because your officemates may be your friends on Facebook. Public-sector employers are going to need to know that this kind of activity is protected under the First Amendment. That doesn’t mean that it can’t be abridged or limited, but it absolutely is protected under the First Amendment.
So at least in the public-sector context, there are some protections that likely apply. It can be prohibited in the private sector if an employer has a very clear policy that prohibits it. It’s similar to the fact that you can’t sexually harass another employee, even if you’re offsite — it spills over into the workplace. The employer just has to be careful, because an overly inclusive policy might sweep up a lot of things that employees simply aren’t willing to tolerate. The policy just has to be very carefully crafted.
Bottom line, if you work in the private sector, your employer can potentially prohibit you from posting political commentary on Twitter or your Facebook page. The question, Oswald said, is whether an employer would really want to do that:
It’s going to have to enforce that policy, not only with line employees, but with executives. Does that senior executive really want to have his or her Facebook monitored by, perhaps, the IT professionals in the company? What an unsavory job for the IT department, to have to be policing all of it.
A contributing writer on IT management and career topics with IT Business Edge since 2009, Don Tennant began his technology journalism career in 1990 in Hong Kong, where he served as editor of the Hong Kong edition of Computerworld. After returning to the U.S. in 2000, he became Editor in Chief of the U.S. edition of Computerworld, and later assumed the editorial directorship of Computerworld and InfoWorld. Don was presented with the 2007 Timothy White Award for Editorial Integrity by American Business Media, and he is a recipient of the Jesse H. Neal National Business Journalism Award for editorial excellence in news coverage. Follow him on Twitter @dontennant.