In Part 1 of our Election Season at Work series, we covered voting leave and election resources. Here, we’re digging into the stickier political speech considerations. For more on these considerations, check out SHRM-Atlanta’s Legal & Risk Management Summit on October 22.

What the law says

One of the most common misconceptions during election season is that employees have an unrestricted First Amendment right to discuss politics at work.

For most private sector employees, that is not the case. The First Amendment generally restricts government action, not private employers, so private organizations generally have more flexibility to establish reasonable workplace expectations around political conversations, displays, solicitation, and conduct.

That flexibility is not unlimited.

Political discussions can overlap with conversations about wages, benefits, working conditions, or other workplace issues that may be protected under federal labor law. They can also intersect with race, religion, sex, national origin, disability, and other characteristics protected by anti-discrimination laws.

For that reason, a blanket “no politics at work” rule may be more difficult to apply than it first appears.

A better approach is often to focus on workplace conduct rather than political viewpoints.

Focus on behavior, not beliefs

There is also a meaningful difference between two coworkers discussing an election and a manager raising the same topic.

Employees may interpret comments from a supervisor differently because that supervisor may influence assignments, compensation, performance reviews, promotions, or other employment decisions.

It may be useful to remind managers to avoid pressuring employees to support a candidate or cause, asking employees how they intend to vote, suggesting that workplace decisions could be affected by political beliefs, or presenting personal political opinions as the organization’s position.

Public sector employers may also be subject to additional rules governing political activity, so HR professionals working in government should review the requirements that apply to their particular organization.

A few things HR can do now 

HR teams may want to:

1. Revisit solicitation, workplace conduct, social media, and technology use policies.
2. Remind managers about the additional considerations that come with discussing politics from a position of authority.
3. Consult employment counsel when a situation involves protected activity, discrimination, harassment, or other legal concerns.

Election season does not require employers to eliminate every political conversation from the workplace. Rather, the key is consistency.

Check out next week’s final installment of the three-part series in which we’ll look at the candidate positions and potential to shape workplace policy.

This article is provided for general informational purposes and is not legal advice. Employment and election laws may vary based on jurisdiction and circumstances. Employers should consult qualified legal counsel regarding specific situations.