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Politics and Election Day Employer Practices and Rights

October 15, 2020

By Michael Burns, courtesy of SBAM Approved Partner ASE

As our national election day approaches on Tuesday, November 3rd, some employers, in addition to providing time off (paid or unpaid) to vote are providing other perks. Starbucks, with over 200,000 employees in the U.S., is offering free transportation to the polls. The coast to coast coffee shop’s program provides a free one-way Lyft ride for employees voting, volunteering as a poll worker, or just to drop off a ballot at the post office.

HR Executive magazine research on employer election practices shows over 1,409 employers are giving some time off to their employees to vote. A 2016 SHRM survey reported that 35% of private and non-profit employers provided paid leave to vote. It was also reported that 50% of government workers were given paid time off to vote.

ASE asked its members in middle September this year whether they give employees paid time off to vote. 84.2% of respondents reported they did not provide paid time off to vote. That left just under 16% of members who report their company did provide paid time off to vote. However, a 2016 SHRM survey said about the same amount (86%) of employers allowed some time off to vote (paid or unpaid). This is an area where state law may require giving time off to vote; however, Michigan does not.

Keeping the Peace Over Politics During the Next Few Weeks

There is no doubt that employees are more inclined to talk politics in the workplace today than in the past, and this can and has led to some employee “dust ups.” Whether or how an employer deals with this is up to them. Employers must decide whether to allow or promote political discourse or take a more restrictive approach to political speech in the workplace. What are the employer rights when employee’s workplace political discussions spin out of control?

CCH HR Answers Now finds where employers have policies on political activity, they most commonly prohibit:

  • Employees from campaigning for a candidate or political party during work hours (included by 65% of those having policies)
  • Employees from using their position to coerce a colleague to make political contributions or support a candidate or cause (62%)
  • The use of an employer’s assets to support a candidate or party (62%)

As one more reminder for employers in the short time before election day arrives, let’s go through our employer rights.

Employers can have a political discussion policy that provides employee guidance if engaging in political discussion.

Susan K. Lessack, attorney at the law firm Pepper Hamilton LLP, provides several points for what such a policy could address:

  • A statement that employees have the right to vote for the candidates of his or her choice
  • An adaptation of any existing non-solicitation policies to restrict political solicitations during work time
  • Reminders that company computers are for company business
  • A statement that prohibits employees from sending political messages on company computer systems
  • Restrictions on wearing political clothing or buttons or displaying political messages, if the employees deal directly with customers (to the extent not protected by the National Labor Relations Act)
  • Cautions that political talk that creates a hostile work environment will not be tolerated
  •  A provision that requests for time off to volunteer on a political campaign or to attend a rally will be considered and granted neutrally, the same way as any other request for time off for any other reason
  • A statement that an employee’s political views should not influence his or her performance reviews or eligibility for promotion.

Unless you are a government employer, a worker’s right to free speech ends when they enter your property. That said, some states have laws protecting employee political activity and/or speech. Michigan generally allows for employer control over proper employee behavior at their workplace. Employees do not have much in the way of protections for political speech. Employers are free to tailor their policies accordingly. Interestingly though, Connecticut, actually does extend First Amendment rights to private sector employees. So before issuing a blanket ban on political speech, it is advised to check state law.

Be sure to understand and avoid interfering with “protected concerted activity’ under the National Labor Relations Act (NLRA). If employee “speech-ifying” and/or “handbilling” states words to the effect “vote for candidate A and they will pass laws increasing wages” this speech would be protected under the NLRA (Section 7).  The reason would be because the “political speech is focused on supporting employees as a group.  On the other hand, if the speech is narrowly focused and simply communicates “vote for candidate A” then an employer rule against political speech in the workplace could be enforced by the employer without too much fear of stepping into legal trouble.

Off-duty political speech can impact an employer so be sure you properly tailor social media and other policies to allow action where off-duty speech becomes harassing or worse threatening violence or becomes bullying.

It is not recommended employers treat employees differently based upon political affiliation. Unless protected by specific state law, political affiliation is not a protected class per se, but political issues can often border other protected classes, such as gender and race. Keep knowledge of political affiliation out of employment related decisions. (hiring. firing, promotion, etc.)

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