Election Season is Here ~ Is Your Workplace Ready?
By Raabia Cheema and David Sotolongo
The 2024 election season is upon us, and voters are intensely polarized, both ideologically and emotionally. Employees find personal significance in a wide spectrum of political and geopolitical issues, and workplace conflict will be inevitable. Time off to vote will be requested. Now is the time to review your understanding of employees’ rights to engage in political speech and activities at work, understand your policies, and plan ahead.
What Are Employees’ Rights?
The National Labor Relations Act. Certain political advocacy by employees may be considered “protected concerted activity” under Section 7 of the National Labor Relations Act (“NLRA”). The NLRA protects employees who engage in concerted activities for the purposes of “mutual aid or protection.” [1] In Eastex, Inc. v. NLRB, 437 U.S. 556 (1978), the United States Supreme Court determined that concerted activity may include activities outside the immediate employee-employer relationship, if the activities are for the purpose of improving employee work conditions. To determine if political activity falls within the “mutual aid or protection” clause of Section 7, the National Labor Relations Board (“NLRB”) examines whether there is a direct nexus between a specifically identified employment concern and the specific political issues for which employees are advocating. For example, political discussions centered around discrimination or minimum wage increases may trigger rights under the NLRA [2]. The NLRA also prohibits employers from taking adverse action against employees who participate in protests or rallies that similarly address such issues.
Using Social Media. Under the NLRA, employers are restricted from acting against those employees who post on social media for the purpose of seeking “mutual aid or protection.” To be considered protected concerted activity, the NLRB reviews social media posts and other electronic messages for substantial evidence that the posts or messages concerned employment terms and conditions or were intended for or in response to a coworker's post or message. An employee’s political posts that fall under the NLRA’s protections may not be used as a basis for an adverse employment action against that employee.
Many states have also passed social media privacy laws that prohibit employers from even accessing employees’ non-public social media posts. In New York, employers are prohibited from soliciting or requiring employees to divulge their username or other access credentials for their personal social media accounts. In Virginia, employers are restricted from requiring employees to add an employee, supervisor, or administrator to the list of contacts associated with the employee’s account. Employers should ensure, therefore, that any employee social media post being considered by the employer was legally obtained.
Anti-Harassment & EEO Considerations. While federal law does not expressly prohibit employment discrimination based on political affiliation or activity, political conversations at work may lead to claims of discrimination or retaliation that could trigger federal, state, or local anti-discrimination laws. For example, political discussions that involve race, color, sex or any other legally protected characteristic could result in claims of discriminationI
In addition, several state and local jurisdictions expressly provide employees with protection against “political discrimination.” For example, District of Columbia law prohibits employers from discriminating against employees for their actual or perceived “political affiliation.” New York law does not allow employers to discriminate against employees because of political activities that take place while off-duty, outside an employer’s premises, and without employer equipment. And Connecticut law extends First Amendment protections to employee speech, prohibiting employers from taking adverse action against an employee for engaged in state or federally protected speech. Other jurisdictions may have similar protections.
Voting Leave. Many states and local jurisdictions require that employers grant employees time off to vote during work hours. These laws vary in terms of the amount of time off required, whether time off must be paid, posting requirements, penalties for non-compliance, and notice required by employees. For example, in Maryland, employees are entitled to up to two hours of paid leave to vote, if the employee is otherwise unable to reach the polls during nonworking hours. The District of Columbia has a similar requirement. Employers should review applicable policies and practices to ensure compliance with state laws requiring time off for employees to vote.
How to Prepare?
Integrity First. Employers should always foster (before, during and after the election season) a workplace culture that is civil, transparent and respectful. A culture of respect and integrity breeds trust and psychological safety, which enables dissent and disagreement in an environment of understanding and learning.
Reinforce Policies and Values. Remind employees about organizational policies and values that address discrimination, social media, voting leave and other relevant topics, including courtesy, communications, respect and dissent. This is a good time to ensure that supervisors are up to date on company policies and values, and that they have a clear understanding of reporting procedures.
Plan. Have a plan in place to address disruptive political conflict at work. Reinforce the use of company hotlines and complaint processes, and when complaints arise, take prompt corrective remedial action. Investigate issues with an eye towards building and improving trust. If a dispute resolution process exists, then reinforce it. Evaluate executive messaging to ensure that it is balanced and fair.
Have specific questions? Contact us.
[1] Note that supervisors are not covered by the NLRA. The NLRA refers to supervisors as employees who have authority “to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees.” See 29 U.S.C. §§ 152 (11).
[2] In February 2024, the NLRB found that an employee’s writing of “Black Lives Matter” on their apron at work was a "logical outgrowth" of concerted activity relating to allegations of racism at the employer's store and, therefore, protected, concerted activity under the NLRA.
