Employment & Labor Insider

Labor Day marked the beginning of the "serious" election season. In 2012, I posted on dos and don'ts for employers, but many of my old recommendations aren't going to work in today's labor law climate. Here's an updated guide to help employers and their employees survive to November 8, and beyond, which I think will comply with the latest positions of the National Labor Relations Board . . .

Before we start, a word about the Board. Section 7 of the National Labor Relations Act prohibits employer "interference" with the rights of non-supervisory employees to discuss terms and conditions of employment, or generally to engage in, or refrain from engaging in, union organizing activity. Section 7 applies to non-union as well as union workplaces. That's my paraphrase; here's the official NLRB position. For specific practical implications of the NLRB position, you can't do better than this recent summary from my colleague and labor law guru David Phippen.

As David notes, the current NLRB takes the position that just about any limit on workplace discussion that could have a "chilling effect" on employees' Section 7 rights normally violates the law. That's why I had to amend the more employer-friendly guidance I gave in 2012.

DO be careful about the way you talk to employees about talking politics at work. The NLRB may not let you prohibit political discussions, or even arguments, among non-supervisory employees. At least, not if the subject matter arguably pertains to terms and conditions of employment. ("Hillary Clinton is for the Paycheck Fairness Act, and, by golly, do we ever need it around here!") That said, you should be able to warn employees that workplace discussion of politics can be polarizing and can have an unpleasant effect on employees' relationships with co-workers that may last long after the election is over.

DO encourage employees to avoid political talk that might be considered "harassment" based on race, sex, national origin, or other protected category. For example, taping a picture of Melania's old men's magazine cover as a prank in a pro-Trump co-worker's cubicle could very well be a violation of your sexual harassment policy, as could pictures of certain "sculptural" representations of The Donald himself. (No links - this is a family blog - you know how to Google.) A workplace discussion about how Trump is awesome because he's going to keep individuals of certain national origins out of this country could be considered national origin harassment. Talking about how Hillary Clinton is disqualified because of her age, health, or gender -- or her femininity or desirability as a woman -- could be considered discriminatory based on age, perceived disability, or sex. Even the NLRB says employers can usually ban this type of "EEO-harassing" speech.

DO (if appropriate for your work environment) place reasonable limits on political discussion in the presence of customers. (Keeping my fingers crossed on NLRB's position here. Don't count on it, though.)

DO be aware that if you allow idle chit-chat about kids, fashion, sports, or the weather when employees are supposed to be getting their work done, you may also have to allow idle political chit-chat when employees are supposed to be getting their work done.

DO consult with applicable state law about voting leave, and comply with it. In some states you have to post a voting-leave-rights notice in advance of election day. Be sure you have done this if those laws apply to you. (There should not be any NLRB problem with this.)

DO be aware that, in a handful of states, it is unlawful for an employer to try to influence an employee's vote. If you operate in one of these states, you should not as an employer overtly endorse or oppose any candidate, referendum, or other initiative. Even if you aren't in one of these states, try to avoid doing anything that might be viewed as pressure on your employees to vote a certain way. (No NLRB problem with this, either, because it applies to management.)

DO remind employees of your internet, social media, and email policies, but be aware that the NLRB may not let you require non-supervisory employees to be "courteous" or "civil" or "appropriate" or "judicious" or "professional." No doubt, the NLRB would think these guidelines are too vague and would have a "chilling effect" on employees' exercise of their Section 7 rights.

DO encourage your employees to “self-police” political discussions by leaving, or warning their co-workers when the discussion appears to be heading into hostile territory. Any such encouragement should, of course, be non-partisan and non-coercive. Think "coping skills," not "orders." I don't think the NLRB would have a problem with giving employees some tips on voluntarily extricating themselves from offensive or uncomfortable conversations.

DON’T impose a flat ban on all political talk at work.

DON’T make, or allow others to make, comments about candidates that may be discriminatory or harassing based on the candidates’ or their supporters’ race, sex, national origin, religion, color, age, disability, or any other legally protected characteristic. (As already noted.)