HBL’s Weekly Employment Law Update 3 Tips for Addressing Employees’ Political Speech

As we near our national election day, employers across the country have been struggling with managing disruptive political speech to the workplace. As your risk management partner, we offer the following three legal risk management tips for addressing employees’ political speech.

Tip #1 – Focus on the “what” not the “why.”

When political arguments become disruptive or otherwise violate company policy, employers are best advised to focus on the specific violation, as opposed to the politics or views of the employees involved. Because employees’ political views may be informed by their protected characteristics (such as ethnicity, religion, or sexual orientation, among many others), your inquiry into “why” may open the door to legal risk exposure. By avoiding knowledge of an employee’s protected characteristics, employers may avoid discrimination-based liability traps.

Tip #2 – Understand applicable law.

Your ability to regulate speech depends on the sector of the employer and the speech at issue.

First, as to sector, governmental employers’ ability to regulate speech is constrained by the Supreme Court of the United States’ application of the First Amendment of the United States Constitution within the employment context. Under applicable state law, certain states apply a similar standard to non-governmental employers.

Second, as to the type of speech, the National Labor Relations Act prohibits both unionized and non-unionized employers from retaliating against employees for certain speech related to the terms and conditions of employment. Historically, this protection has been construed broadly.

Tip #3 – Develop and implement a robust harassment reporting procedure.

Regardless of size or sector, all employers should have an internal procedure for employees to report incidents of perceived unlawful harassment. If a political dispute results in one or both employees feeling targeted based on their protected classification, a comprehensive harassment procedure would facilitate an in-house resolution and save long-term costs.

BONUS TIP – Develop a social media policy.

Many workplace political arguments are either started or intensified on social media (i.e., Facebook, LinkedIn, Twitter, Instagram, Pinterest, Tumblr, blogs, etc.). Employees’ use of social media can expose the company to discrimination or harassment claims. Mindful of the factors provided above (sector, type of speech, and applicable law), you may provide guidelines for social media speech to manage the organization’s risk exposure and encourage respectful communication.

If you have any questions about the above, please contact Hall Benefits Law. We would love to hear from you, and the HBL team looks forward to serving as your risk management partner!

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Hall Benefits Law, LLC

HBL offers employers comprehensive legal guidance on benefits in mergers and acquisitions, Employee Stock Ownership Plans (ESOPs), executive compensation, health and welfare benefits, healthcare reform, and retirement plans. We counsel a wide spectrum of clients including small, mid-sized, and large companies, 401(k) investment advisors, health insurance brokers, accountants, attorneys, and HR consultants, just to name a few. HBL is passionate about advising clients, and we are dedicated to our mission: to provide comprehensive, personalized, and practical ERISA and benefits legal solutions that exceed client expectations.

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