The adage is that you don’t discuss politics, religion, or sex at work. We are now just a few months away from a national election. With primary races over, the conventions coming up, and the final election frenzy leading up to November, both public and private employers should take a moment to review the law and their policies to ensure they’re ready to react as politics bumps up against the workplace in the months to come.

Private-sector employers

Employers should be concerned when divisive political arguments and disagreements make their way into the workplace. Employees that pursue political activities at work can hurt employee morale, lower productivity, and damage the company’s image. Sometimes employers need to be able to keep political activities out of the workplace, but you may fear that disciplining or even discharging employees for their political activities will run afoul of employment discrimination laws. Here are some of the issues private-sector employers should consider when dealing with political activity in the workplace.

On-duty restrictions

Employers have the greatest flexibility to regulate employees’ speech and behavior when it occurs on the job and during working hours. Although you may decide that a certain amount of political discussion within the workplace is beneficial, you should recognize that it’s easy for politics to get in the way of productivity. Your right to restrict employee behavior is at its highest when the behavior in question results in a direct cost to the company.

For example, you may prohibit employees from using company property (including computers, printers, and faxes) to campaign for a candidate or a cause. You may also restrict employees from using company telephones for fundraising or “get out the vote” phone calls.

You may also take steps to protect yourself from indirect losses, such as the loss of productivity when workers devote their attention to subjects that aren’t relevant to the day’s work. While you may want to avoid being heavy-handed, whenever an employee is distracted from his duties it almost always results in some cost to the company, whether directly or indirectly. Indirect harms may also include reputational harms. You’re within your rights to restrict employee campaigning on the job if that activity will cause your name to be associated with a campaign or issue. For example, employees who have frequent contact with customers and clients and whose speech in that role would likely be associated with and attributed to you may be asked to avoid on-the-job politicking.

Federal election laws do place some restrictions on private employers. For example, you may not intimidate, coerce, or interfere with anybody’s right to freely vote as he chooses. But the law only protects the act of voting freely, not the holding of political views or having a political affiliation. Although corporations may not directly contribute money to federal candidates, employers may solicit managerial and administrative employees to donate to “separate segregated funds” that may in turn contribute money to candidates. Tax-exempt organizations are restricted in their abilities to support or oppose political candidates.

Off-duty restrictions

Private employers may also impose reasonable off-duty restrictions on their employees. However, laws concerning protection of employee off-duty activities vary tremendously from state to state. Some states expressly prohibit employers from allowing an employee’s lawful off-duty conduct to have any effect on the terms and conditions of her employment.

Even where such actions aren’t prohibited, there are pitfalls for employers who take them. For example, an employee who is discharged for off-duty activity will likely be entitled to unemployment insurance. If the employer is unable to show how that off-duty conduct related to its legitimate business needs or violated a duty owed to the employer, the discharge is more likely to be ruled “no fault of the employee” for the purposes of unemployment compensation.

In addition, you should always remember that employees’ “concerted activity” in pursuit of collective bargaining is protected by the National Labor Relations Act (NLRA). Just as politics is easily intertwined with questions of race, gender, religion, and national origin, it’s easy for political discussions to overlap with discussions of economics, working conditions, and wages. When employees are talking to each other for the purposes of improving their working conditions, you must tread very carefully to avoid restricting their speech, even if it appears that they’re just talking “politics.”

Public-sector employers

When it comes to political speech in the workplace, private employers have it a little easier since they aren’t subject to the restrictions of the U.S. or state Constitution. Public employers, on the other hand, face significant free-speech concerns if they make employment decisions based on an employee’s political activity. There are three areas in particular that public employers should be aware of where the law restricts either the employee or the employer: employee speech, political patronage, and the federal Hatch Act of 1939.

Employee speech

The U.S. Constitution provides that Congress shall make no law restricting freedom of speech. Courts have held that the Fourteenth Amendment makes the prohibition applicable to states as well. In addition, federal law allows an employee to file suit against his employer under 42 USC § 1983 if it deprives him of rights guaranteed by the Constitution.

Until recently, the prohibition against employment action based on employee political speech was broadly applied. In a series of cases from 1968 to 1994, the U.S. Supreme Court held that public employees are generally permitted to speak out “as citizens” on “matters of public concern” unless the employer can show that workplace disruption would result from the speech. The rule has been applied to a number of situations, including one in which a public schoolteacher wrote a letter to the local newspaper criticizing the school board. The Court ruled that the teacher’s speech was protected. Pickering v. Board of Education of Township High School District 205.

The rule applied equally to a public schoolteacher who complained privately to her principal about discriminatory practices. In another scenario, a public employee initiated a “miniinsurrection” by circulating surveys to other employees about the relative merits of various supervisors in an attempt to stave off a transfer. His speech also was protected. Even when an employee mused that he hoped potential future assassins would “get” President Ronald Reagan after John Hinckley, Jr., failed, the Supreme Court found that the speech was protected by the First Amendment.

But in 2006, the Supreme Court indicated that there’s a limit to how far the protections of the First Amendment will carry a public employee. In Garcetti v. Ceballos, the Court held that the line of cases upholding employee free speech is limited to situations in which the employee is speaking “as a citizen.”

The Court went further and clarified that when public employees make statements “pursuant to their official duties . . . the Constitution does not insulate their communications from employer discipline.”

The speech in question was a memo penned by an attorney (Richard Ceballos) in the Los Angeles County District Attorney’s Office. The memo criticized the method used to obtain a critical search warrant. The Court held that it was part of Ceballos’ duties to write the memo. Likewise, the Court said, it was fair game for the county to transfer and demote him based on speech that was made within the scope of his duties in the office.

Political patronage

The framework set out in the Pickering and Garcetti cases leaves something of a hole in the law. An employee’s speech outside the scope of his job duties is generally protected by the First Amendment. But does that mean that any employee is free to advocate his political views so long as it’s done “off the clock”? A line of highly divisive and hotly argued cases stretching back to 1976 says no.

In Elrod v. Burns, a newly elected Democratic sheriff sought to discharge a number of Republican-appointed employees. The employees sued, and the Supreme Court overturned their discharge. Although some members of the Court would have overturned any such form of patronage, the rule that emerged from a highly fractured Court was that political patronage is unconstitutional when applied to “nonconfidential” and “nonpolicymaking” employees. Your run-of-the-mill civil servants can’t be fired for being affiliated with the “wrong” political party whenever a changing of the guard takes place.

But that formula has been softened in recent years by acknowledgment that not all “confidential” and “policymaking” jobs are sufficiently political to make them beyond the reach of the Elrod decision. The Court has since held that “if an employee’s private political beliefs would interfere with the discharge of his public duties, his First Amendment rights may be required to yield to the State’s vital interest in maintaining governmental effectiveness and efficiency.” Those principles also apply when the job action in question is a promotion, transfer, recall from layoff, or new hire.

Simply being a manager or supervisor isn’t necessarily enough to make an employee a policymaker. The job must be one in which the incumbent authorizes meaningful input into decision making, either directly or indirectly, on issues in which there is room for principled disagreement on goals or their implementation.

Hatch Act levels the playing field

Since 1939, the Hatch Act has prevented civil servants from engaging in certain forms of partisan political activity. It applies not only to employees of the federal government but also to employees of state or local governments who work in connection with programs financed in whole or in part by federal loans or grants. For example, local government employees who administer programs involving public health, public welfare, housing, urban renewal and area redevelopment, employment security, labor and industry training, public works, conservation, agricultural, civil defense, transportation, antipoverty, and law enforcement programs might be covered by the law.

State employees who are covered by the Act may participate in activities such as:

• Becoming a candidate for public office in a nonpartisan election;
• Campaigning for and holding elective office in political clubs and organizations;
• Actively campaigning for candidates for public office in partisan and nonpartisan elections; and
• Contributing money to political organizations or attending political fundraising functions.

The Act prohibits covered state employees from activities such as:

• Becoming a candidate for public office in a partisan election;
• Using official authority or influence to interfere with or affect the results of an election or a nomination for office; and
• Directly or indirectly coercing contributions from subordinates in support of a political party or candidate.

Bottom line

As the political rhetoric heats up this summer, take a few minutes to review how you will handle political activity by employees both on and off the job. A uniform policy that’s consistently enforced will provide a predictable environment for your employees and might help prevent aggravation for all parties when spirits are running high.