Managing Employees in an Election Year
Marc A. Fishel and Meghan Brickner
As another election season approaches, employers should be informed as to how to manage employee politics in the workplace. Studies have shown that political talk is more common in the workplace then it was in the past and has the potential to impact employee productivity. According to the Society for Human Resources Management, in 2016, 1 in 4 employees reported negative workplace conversations about politics.[1] Workers were more likely to avoid co-workers due to these negative political conversations. Obviously, these experiences are not conducive to a productive workplace. The overall tone of political talk tends to be negative and the issues are increasingly more personal to employees.
The question for public employers is how to legally minimize the disruptions caused by political discussions and activities. While public employers cannot ban political speech in the workplace all together, they can put certain restrictions in place. Public employees are afforded First Amendment protection, however, such protection is not absolute. Public employers may impose reasonable time, place and manner restrictions concerning political speech, however, they cannot be overly broad limitations.
The United States Supreme Court has provided guidance to help determine if a public employee’s speech is protected in the case of Pickering v. Bd. Of Edu., 391 U.S. 563 (1968). A court will apply what is known as the Pickering Balancing Test. Under this test, the court first determines whether the employee’s speech is regarding a matter of public concern. If it is, the court balances the interests of the employee, as a citizen, in commenting on matters of public concern against the employer’s interest in efficient public service. In Pickering, the employee’s speech related to expenditures by a school district which also happened to be his employer. The Court held this type of discussion involved a matter of public concern. On the other hand, personal grievances of an employee likely will not be protected under the First Amendment. Connick v. Myers, 461 U.S. 138 (1983).
In Garcetti v. Ceballos, 547 U.S. 410, (2006) the plaintiff, a deputy district attorney, alleged that his employer retaliated against due to his speech, in violation of the First Amendment. The plaintiff, while working as a deputy district attorney, prepared a memorandum explaining his concerns regarding an allegedly inaccurate affidavit used to obtain a search warrant in pending criminal case. The plaintiff alleged that his supervisor retaliated against him as a result of this memorandum. The court ultimately determined that the employee’s allegation of retaliation failed because he was not speaking as a citizen for First Amendment purposes since he wrote the memorandum pursuant to his official duties. The First Amendment did not prohibit managerial discipline based on the employee’s expressions made pursuant to official responsibilities.
Employers are permitted to put restrictions in place to prevent the negative effects of political talk in the workplace. These restrictions must be applied equally regardless of the employee’s political views. Constitutionally permissible restrictions include:
- Prohibiting candidacy for public office in a partisan election;
- Prohibiting candidacy for public office in a nonpartisan general election if the nomination to candidacy was obtained in a partisan primary or through circulation of nominating petitions identified with a political party.
- Prohibiting the circulation of official nominating petitions for any candidate participating a partisan election.
- Prohibiting campaigning by writing for publications, by distributing political material, or by writing or making speeches on behalf of a candidate for partisan elective office, when such activities are directed towards party success;
- Prohibiting solicitation, either directly or indirectly, of any assessment, contribution or subscription, either monetary or in-kind, for any political party or political candidate.
- Participation in a political action committee which supports partisan activity.
Outside of the workplace, social media can also provide an outlet for employees to discuss politics. While the same First Amendment legal standards apply to social media, it is much easier for employees to engage in protected political activity. For instance, in one case, a court held that two sheriff’s office employees engaged in protected political speech when they “liked” the sheriff’s political opponent’s Facebook page. Bland, et al. v. Roberts, 730 F.3d 368 (4th Cir. 2013).
However, as with speech in the workplace, First Amendment protection on social media is not absolute. For example, in a recent case, the court found that the Plaintiff, a deputy chief of a police department, was speaking as a citizen on a matter of public concern when the Plaintiff posted a picture of the confederate flag accompanied by the phrase “its time for a second revolution” on Facebook. Duke v. Hamil, 997 F. Supp. 2d 1291(N.D.Ga.2014). However, the court ultimately found that the employer’s interest in maintaining the police department’s good working relationships and reputation outweighed the plaintiff’s interest in speaking.
It is important that Employers adopt personnel policies addressing employee’s social media use. Employers are permitted to place limitations on the use of computers and personal electronic devices for political activity while on a duty. As for off-duty social media use, Employers are also entitled to put limitations in place. Employers may regulate and discipline employees for the disclosure of confidential or proprietary information. Additionally, can regulate, or ultimately ban, the use of their image, insignia, or logo on social media as well as any political speech that is intended to claim the employee is speaking in their official capacity about a political matter.
Employers should be pro-active in combatting the negative effects of political talk in the workplace. It is crucial to remind employees to treat co-workers with respect. Additionally, employers should encourage employees to report any concerns they may have, and address concern on a case-by-case basis. Taking such action will help prevent the negative impact of political conversations on employee productivity and maintain positive work relationships among employees.
[1] https://www.shrm.org/resourcesandtools/hr-topics/employee-relations/pages/politics-at-work-.aspx