How to Manage Political Expression at Work

It’s election season in the U.S., in an era of increased polarization and divisiveness. What should employers do when their employees engage in political discussions at work or take part in political activism in their personal lives? Experts advised employers not to shut down discussions, but said they should set expectations for what is appropriate.

“I would advise against prohibiting political discussions at work,” said Joseph L. Beachboard, the chief employment attorney at Beachboard Consulting Group in Los Angeles. “Instead, employers should manage political expression with parameters, communicating to their employees what the behavioral expectations are and what is appropriate and inappropriate.”

Beachboard and Dennis Davis, the national director of client training at Ogletree Deakins, presented on the issue at the SHRM Annual Conference & Expo (SHRM24) in Chicago.

“Workers are taking part in public protests, boycotts, walkouts, and expressing opposition to or support of various political issues, including company practices and policies,” Davis said.  Many people have become much more polarized in their political opinions, which can cause discomfort in the workplace, he said.

The speakers cited research that found 83% of workers overall said they had conversations about politics at work, while about the same number said they would prefer to avoid talking about politics at work.

“The data shows that there is a lot of political talk at work, but people wish there wasn’t,” Davis said. “That tells me that workers are looking for direction and cover from HR to set some rules.”

On the other hand, 87% of surveyed employers said they are concerned about managing divisive political beliefs, 84% said discussions about politics will adversely affect employee engagement, and 79% said political talk adversely affects productivity. But just 8% of companies have workplace policies on political expression at work.

“That’s a serious disconnect,” Beachboard said.

A new SHRM initiative highlights the urgent need for workplace civility.

The Legal Implications    

Employees regularly cite the freedom of speech enshrined in the First Amendment to the U.S. Constitution as a right to say what they please at work, Beachboard said—but that’s a misconception.

“ ‘I have freedom of speech,’ they say. They don’t. Unless you work for the government, you don’t have a First Amendment right to free speech in the workplace,” he said.

But there are certain prohibitions on employers’ limitations on speech, he added. They include interfering with someone’s ability to vote and trying to coerce employees or provide incentives to vote a certain way.

The National Labor Relations Board (NLRB) oversees the National Labor Relations Act (NLRA), which protects the rights of employees to engage in concerted activity or discuss the terms and conditions of their employment.

“A common misunderstanding is that the NLRA only applies to labor organizing,” Beachboard said. “That is not true. It applies to every workplace and every worker that is not a supervisor or manager.”

Beachboard explained that historically, under the NLRA, protected activity and expression had to be connected to the workplace, such as a discussion about a bill to increase the minimum wage. But the NLRB under the Biden administration has taken the position that protected activity can be based on any political or social issue that employees want to talk about in the workplace. The only speech crossing the line would be if it is raised to the level of harassment, is deemed sexist or racist, violates another protected category, or is threatening.

Beachboard added that although federal equal employment opportunity (EEO) laws do not cover political affiliation as a protected category, these types of discussions can cross over to areas that raise EEO issues, such as race or sex. 

“Employers need to manage the tension between what the NLRB allows and what EEO laws state about intervening if discussions raise issues associated with protected categories,” he said.

He recommended HR also take care to know the applicable laws in relevant states regarding voting, acting against people for their political views, and lawful off-duty conduct.

What Can Employers Do?

Davis advised employers to first examine the extent of political discussion or expression in their workplaces and find out how big of an issue it is.

Next, “reaffirm your workplace culture, foster inclusivity and respect for one another,” he said. “Remind people that healthy political discussions are OK. HR can guide employees and managers on how these conversations should go.”

Davis provided basic tips for positive interactions:

• Use “I” statements, so as not to speak for the other person.
• Conduct two-way conversations.
• Don’t stereotype others.

But what should employers do if they find an employee has engaged in some possibly inappropriate political expression?

“Find out when did the behavior or expression occur, where did it occur, who engaged in the speech or conduct, and what was said or done?” Davis said. “The ‘what’ is most important. Is it political speech? Or is it hate speech and crosses over into your anti-discrimination policy? If it’s the latter, employers can take a more aggressive stance against the expression.”