Why to Keep Politics Out of Workplace Policies and Procedures

Any appearance of politics in the workplace, especially in today’s hyper-partisan political climate, is bound to stir strong feelings — and rarely positive ones. Even so, the political volatility that Americans experience at work continues to increase. The 2022 Politics at Work Study from SHRM found a number of alarming trends:

• 20% of HR professionals see greater political volatility at work than they did in 2019

• 24% of U.S. workers had personally experienced political affiliation bias (preferential or undue negative treatment based on political positions), up from 12% in 2019

• 50% of in-person employees have experienced political disagreements in the workplace

• 39% of remote workers have experienced political disagreements in the workplace

The prevalence of these issues naturally has HR departments considering the implementation of workplace policies and procedures that could help to regulate political speech and discrimination. However, this is easier said than done, and putting politics into workplace policies may ultimately do more harm than good (for both the workers and the company). It’s possible that indirect and apolitical preventative measures are a better way to focus your efforts. Let’s explore why.

Think Twice Before Targeting Political Speech in Workplace Policies

Many people believe that expressing political views in the workplace is constitutionally protected speech. In fact, this is not true. It may seem surprising, but the U.S. First Amendment right to free speech is not federally protected within most private companies.

The First Amendment prohibits the federal government from restricting free speech, but it does not comment on what private employers can or cannot regulate on the job. Jay Hornack, an employee rights specialist at the University of Pittsburgh School of Law, says that “in a private workplace” employers can set their own rules about what speech is acceptable, and First Amendment rights are not “something an employee can enforce against an employer.”

This means that, in effect, private employers have broad discretion to write policies and procedures that restrict political expression during normal working hours and on company premises.

However, there are certain exceptions that should have companies thinking twice.

1. Public Sector Workplaces

Because public-sector employees work for the U.S. government, they are protected from anything that could be seen as retaliation for expressing First Amendment rights. Courts have been cautious about the scope of this protection, but implementing policies that restrict speech could be a risk.

2. The National Labor Relations Act (NLRA)

The NLRA prohibits employers from instituting or enforcing any workplace policies and procedures that ban employees from discussing the terms and conditions of their employment. This could include:

• Wages or salaries, including minimum wage laws

• Advancement/promotions

• Paid time off or paid leave

• Working conditions

• Union activities

Expression related to unions must be permitted regardless of union membership status, union presence in your area, or existence of unions in your industry. Any of the topics above could easily be associated with the position of a political party or particular politician, making restrictions on political speech into a thorny issue.

3. Local Laws

Certain states and municipalities have specific laws in place that protect the political expression of employees. The following brief list has a few examples per the National Law Review:

• California, Colorado, Guam, Louisiana, Minnesota, Missouri, Nebraska, Nevada, South Carolina, Utah, West Virginia, Seattle (Washington), and Madison (Wisconsin), prohibit employers from retaliating against employees for engaging in political activities.

• New Mexico protects employees’ political opinions.

• New York, Illinois, Washington D.C., Utah, Iowa, Louisiana, Puerto Rico, Virgin Islands, Broward County (Florida) and Urbana (Illinois) specifically prohibit employers from discriminating against employees based on party membership or for engaging in election-related speech and political activities.

It’s wise for employers to consult legal counsel about the local jurisdiction’s authority as related to workplace policies and procedures that could impact an employee’s political statements. 

What Can Employers Do About Politics In the Workplace?

While banning political talk at work may seem like the best way to handle things, the blurry lines around what counts as protected speech can lead to legal quandaries including employee complaints, labor relations grievances, and even union arbitration. Harvard Business Review’s advice for employers is clear: Don’t Ban “Politics” at Work. So what can HR do to keep political talk from starting arguments and causing its own problems?

Generally speaking, HR and legal experts advise actions such as:

• Implementing transparent, easy-to-follow policies against harassment. Clear communication with examples of harassing or intimidating behavior can help to prevent inappropriate or uncomfortable political confrontations, even if they are not specifically described as such in the workplace policy on harassment.

• Hold training sessions about demonstrating respect to co-workers, but do not target politics as a specific subject. New policies about showing respect to others while at work can reinforce the training.

• Lead by example. When executives, HR professionals, managers, and supervisors talk openly about politics, front-line employees may feel pressured to agree or concerned about how they’ll be treated if they disagree. Instead, refrain from expressing political views in the workplace.

• Consider limiting some types of visual displays in the office, such as posters, stickers, or pins, without specifically describing expressions of political viewpoints.

• Take care with office televisions. It’s best to avoid showing any potentially political programs or politically-affiliated news coverage in break rooms, conference rooms, or lobbies.

Whatever solutions you choose, be careful not to cross the line on NLRA protections (or any other federal and state laws) that may protect certain kinds of political speech.