Navigating Election Year Politics in the Workplace

As the United States prepares to engage again in the Presidential election, the workplace “water cooler” talk inevitably includes political speech and opinions. Since political speech can often spark debate, conflict, and distractions, it’s no surprise employers want to keep such discussions out of the workplace. Doing so legally can be tricky, given layers of federal, state, and local laws that apply to political activity at work.  

This article explores some important considerations for employers who wish to restrict employees' discussions regarding politics in the workplace. 

First Amendment Right to Express Political Opinions. The First Amendment’s “Freedom of Speech” guarantee applies to public employers, not private employers. Public sector employers may limit employee speech only after weighing the employee’s interest in speaking out as a citizen on a matter of public concern against the employer’s interest in maintaining an efficient workplace. If the public sector employee’s speech demonstrably interferes with work, then it’s generally not constitutionally protected. Private employers may prohibit political speech as long as doing so does not violate another law, as provided below.  

National Labor Relations Act. Nonsupervisory private sector employees, whether they’re in a union or not, enjoy the right under Section 7 of the National Labor Relations Act (NLRA) to engage in concerted (as in collective) activity to discuss wages, hours, or other terms and conditions of employment. In general, insulting a political candidate is not a protected activity; however, if an employee talks about how a candidate will raise the minimum wage or improve their working conditions, that speech may be protected concerted activity because it is potentially related to their employment.  

Hats, T-Shirts, Pins, and Posters. As long as it does not infringe on the employee’s Section 7 rights described above, employers may establish reasonable and consistent dress code limits for business purposes. If an employer bans one political party’s hats or slogans, it should not let employees wear another party’s slogans. The same goes for workplace posters or displays.  

Employers should also be careful when enforcing a dress code that prevents personal ideology and social justice advocacy in the workplace. In December of 2023, a federal court ruled Whole Foods Market’s dress code that banned the wearing of “Black Lives Matter” (BLM) messaging did not violate the employees’ rights under Section 7 because the employees were showing solidarity with the BLM movement, and was not related to their working conditions. Yet, in a similar case against Home Depot, which was decided in February 2024, the National Labor Relations Board (NLRB) ruled against Home Depot for forcing an employee to remove BLM insignia from his work apron. According to the NLRB, the BLM messaging was related to the employee’s working conditions because he started wearing it around the time he filed a complaint of racial discrimination against the company. Therefore, wearing BLM in this instance was considered protected concerted activity and should have been permitted. 

Ban of Captive Audience Meetings. Washington State’s legislature has passed a new law, the Employee Free Choice Act, banning employers from mandating all-hands meetings that discuss “political or religious matters.” Political matters include whether an employee should join a union or where leadership will discuss why a particular candidate is a better choice. Connecticut, Maine, Minnesota, New York, and Oregon already have similar laws banning captive audience meetings. 

Political Ideology Protections. Although federal law does not explicitly protect employees expressing their political beliefs, employee discussions or activities involving political issues could indirectly trigger anti-discrimination laws. For example, many political issues directly or indirectly impact protected status, like race (Affirmative Action) or sex (Reproductive Rights). Thus, employers should be cautious about responding to this type of content at work because an employee could claim it’s a form of illegal discrimination. In addition, some state and local laws do protect an employee’s political affiliation and speech. For example:  

• “Political ideology” is a protected class in the City of Seattle, and employers are prohibited from taking adverse action against an employee based on this status.  
• California law protects an employee’s right to lawful off-duty activity, including lawful political activity, but political status is not a protected class.  
• Washington State prohibits public sector employers from campaigning on work time.  
• Oregon prohibits employers from discriminating against employees for signing initiatives, referendums, recalls, or candidate petitions. 
• Idaho makes it illegal for employers to influence an employee’s vote by threatening discharge.  

Employers are sure to see some further legal developments as the election nears.  

Employee Relations Considerations. Compliance considerations aside, people usually feel strongly about political matters, and discussions about a candidate’s political stance can be emotionally charged. There are seldom easy answers to the questions posed by politics in the workplace. Discussions of this nature can lead to conflict or, worse, complaints of bullying or harassment. Policies that address social media and politics in the workplace help frame appropriate behavior to ensure a respectful company culture compliance with the law. Employers may also consider reminding employees about their policy against harassment and bullying. 

Eligible Archbright members have access to several resources to aid in the coming election season, including Politics in the Workplace Keynote, Politics in the Workplace Policy, Social Medial Keynote, and Social Media Policy. Eligible members can also contact the HR Hotline by phone, email, or mozzo Chat with any questions or to seek specific guidance. For more information on an Archbright membership, contact info@archbright.com.