The Risks of Talking Politics at Work
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The Risks of Talking Politics at Work

Is political speech in the workplace out of control or simply inevitable?

Now that most companies have returned to a semblance of in-person work, including hybrid (on-site and remote) schedules, the problem of political speech—whether in the office, on Zoom calls, or on intracompany messaging platforms—poses a significant challenge to notions of workplace harmony.

Maintaining a safe physical workspace—preventing physical harm or prohibiting and punishing sexual and racial harassment—has been the goal of management and government regulators like OSHA and the EEOC for decades. But what about employees who insist on their right to espouse personal political beliefs, or to simply comment on a given current political crisis in a way that offends co-workers? Should such speech be allowed, tolerated, or prohibited?

To the chagrin of those who are outspoken, there simply is no First Amendment right to free speech—political or otherwise—in the nongovernmental American workplace.

What the First Amendment narrowly protects is a government employee’s free speech rights when acting as a private citizen. Thus, in any work environment outside of a federal, state, or local entity, an employer can legally prohibit or curtail comments of a political nature, even if expressed in a benign fashion. In the 21st century workplace, however, such a rule against political speech is virtually impossible to enforce.

What has changed is the ubiquity of national political discourse in our everyday lives. Consider the first thing one encounters upon entering a well-appointed reception area in an accounting office, a dental office, a software company, or an advertising agency. The flat-screen TV is on.

It’s not tuned to old reruns of The Mary Tyler Moore Show, even in Minnesota. Often, the “news” from Fox News or CNN greets the client or patient, apparently based on the assumption that people don’t want to go one minute without knowing the latest political upheaval facing the nation.

Is chastising a backroom employee who starts an argument based on what he just saw on that reception-area screen hypocritical?

While bars and restaurants can get away with “all sports, all the time” channels, the business world inevitably signals a political bent with its cable news choice for visitors, leading to the safer alternative of droning stock market data or home improvement shows, which offend none and interest few. Meanwhile, the person in the back is still talking, emailing, or tweeting about politics.

Employers have every right to insist that employees who tweet vociferous or even mild opinions about politics and politicians not identify themselves with their employer or workplace.

The safest bet for any company is to retain and enforce its neutrality. Again, however, because numerous large companies have, after intense investor or mass employee pressure, taken very public stands on hot-button issues, such as Disney’s fracas in Florida, the individual employee is understandably confused about why he or she must remain silent when the corporation risks the farm for a certain political position.

In Minnesota, employers cannot by law “economically threaten” or fire an individual because of that person’s “political contributions or political activity.”

If a court finds, for example, that a company has pressured an employee to vote for a particular candidate, the company can be charged with a gross misdemeanor. Employees, however, who voluntarily campaign for a candidate by wearing “political clothing” at work (or on their Zoom calls), or even those who have a political poster in the background of their home office, are theoretically free to do so unless their employer has a “political expression policy” forbidding such conduct.

Because of social media, particularly the encouragement via “likes” of volatile and sometimes violent political commentary, employers find themselves policing a workforce convinced of its right to “communicate strongly-held beliefs.”

Nonetheless, most workers prefer an environment free of hostility, argument, and political lecturing, where good work and collaboration, not debating skills, are rewarded.

Still sacred is the right of workers to engage in “concerted activities” under the National Labor Relations Act (union organizing and protection for speech about hours, wages and so forth, topics some might view as political).

Beyond that long-recognized legal exception, workers and their bosses still face a quagmire of vague rules about “inappropriate” political speech. Focusing on respect and dignity for every worker—goals enshrined in diversity and inclusion efforts embraced by many employers—can  help. If only the politicians whom employees like to talk about operated with a similar respect and dignity toward their own workplace colleagues: cue the “across the aisle” bipartisanship song. 

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Linda L. Holstein is a Minneapolis writer, trial lawyer, and veteran employment law attorney. Holstein also mediates employment and business law disputes (holsteinmediation.com).

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