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Dear Rita: With the elections less than a month away, the food bank I direct will be buzzing with passionate political talk. This could create a minefield. Any suggestions? - Minefield Watcher
Dear Minefield Watcher:
Many of the people who work at community nonprofits care deeply about their communities, so it's understandable that they may be passionate about elections as well. In fact, a recent study showed that 35% of bosses and 66% of coworkers openly discuss politics at work. Despite the complications of limiting political speech in the workplace, the risk of allowing offensive workplace expression is far greater than limiting it. The trick is to err on the side of stopping controversial and disruptive communications without overreacting to the usual day-to-day bantering among employees. On the other hand, nonprofits that attempt to regulate political speech outside of the workplace do so at their own risk. There isn't a single right answer on where the line should be drawn on political speech at work.
Here are seven guidelines that may help:
1. The first golden rule is that discussions should remain respectful of divergent opinions. You and the food bank’s supervisory staff should steer clear of seemingly innocent, but snarky, off-hand political remarks. Discussions around the coffee pot this year can be punctuated with issues about gender, race, age and disability – all categories protected by nondiscrimination laws. Statements such as “I have problems voting for a woman or an African American” “He’s too old to run the country” or ‘Can you believe the candidate has a special needs child?” could come back to haunt a manager who later terminates the over-40 female African American bipolar employee. If she sues, keep your checkbook at the ready. Conversations about whether a candidate is qualified for the number one job in this country can still support diversity and inclusion and show respect for employees’ different views.
2. The second golden rule is that political chatter should not interfere with job duties. The bottom line is that the purpose of being at work is to work and employers may discipline or terminate employees who act unprofessionally or create disturbances in the workplace. The same rules that apply to disruptive behavior in general apply to political discourse that is disruptive.
3. Be sure to keep politics out of employment decisions. Although the First Amendment [4] generally does not protect political speech at work, many state laws protect employees and prospective employees from discriminatory actions based on political affiliation or political activity. Politics should never be a factor in employment decisions. Last year, 19 employees at the U.S. Department of Justice stepped down in the wake of a firestorm over the firings of some U.S. prosecutors, apparently at least partly because of their perceived political views. According to Associated Press, “[S]ome of the fired U.S. attorneys maintain that the firings in late 2006 were motivated by politics and not the job performance of the prosecutors.” This controversy, still under investigation [5], was a factor in the departure of U.S. Attorney General Alberto Gonzales. The best advice is to hire and retain the best person for the job, without regard to their political affiliation.
4. Employers’ political speech may be restricted. For example, some states have laws barring distribution of political messages in paycheck envelopes or warning of job consequences if a certain candidate is elected. The Wall Street Journal recently reported that a major corporation advised its employees that electing a presidential candidate from a particular party could adversely affect their jobs. This type of statement to rank-and-file employees is, more likely than not, illegal.
5. Nonprofits that already have no-solicitation policies in place can apply them to the handing out of political brochures and the selling of Girl Scout cookies. The no-solicitation policy should uniformly limit or prohibit seeking support for and distributing literature about any type of nonwork activity.
6. Employers can prohibit employees from making political statements to clients while on work time or dressing in a manner – wearing political buttons, tee-shirts and so forth – that may interfere with doing the work of the mission.
7. Employers should beware of regulating political activity outside of the workplace. Although the law varies widely from state to state, most courts would side with the employer only when the regulated political speech is demonstrably harmful to the nonprofit’s legitimate business mission. A few state laws go even further by specifically prohibiting discrimination for lawful activities outside of work, including political activities.
One Final Thought
Encourage all of your employees –regardless of what candidates they support – to participate in the democratic process. Remember, most states have laws allowing employees paid time off to vote.