Q&A: This is part of a 2024 series of HR questions and answers, prepared by Melissa Caulum Williams, Senior Counsel at the Husch Blackwell law firm.
If you have questions about this topic, or any matters related to employment law, The League’s free HR Legal Line can help. The League arranges to have Husch Blackwell attorneys provide up to an hour to address a credit union’s employment questions. You can find more information about the service via this Compliance Courier.
This month, Melissa covers several FAQs about political speech and related workplace issues. She wrote, “With the RNC coming to Wisconsin this month, the DNC in Chicago next month, and the November election right around the corner, we thought it would be helpful to provide credit unions with some guidance regarding political speech at work.”
Can I lawfully discipline or terminate someone for political speech within the workplace?
If your business is located in Madison, Wisconsin, no. Under Madison’s city ordinance, an employer may not discriminate against someone because of their political beliefs, including speech or association.
If your business is located outside of Madison, Wisconsin, maybe. Although political beliefs are not explicitly protected on a federal or state level, the speech may be protected by another protected characteristic, such as religion, race, or declining to attend a meeting or otherwise participate in communication about political matters. In other words, if political speech, action, or nonaction is tied to an individual’s religion, race, or refusal to attend a meeting that will have political conversations is likely protected under state non-discrimination laws.
Can I lawfully restrict political attire within the workplace?
Likely yes. Political attire, such as buttons, hats, or shirts, can be restricted in the workplace. We recommend that you have a neutral dress code policy that prohibits wearing politically-affiliated attire. Individuals who violate the policy can be disciplined.
However, employers must be very careful that restricting political attire does not infringe on an employee’s National Labor Relations Act’s (“NLRA”) Section 7 protections. Under the NLRA, any conduct, including speech, attire, or other actions or nonactions, that is related to the employee’s employment is protected conduct.
Examples of protected political attire could include a button supporting increasing the minimum wage or promoting a candidate with an explicitly communicated pro-union position.
If you have any concerns about an employee’s political attire being related to employment, you should contact an employment attorney before disciplining the employee.
An employee is claiming their speech or attire is tied to a protected class. What are my options?
We see these types of arguments related to speech or attire specifically regarding religion and disabilities.
If the employee is claiming their speech or attire is related to their religion or disability, an employer might be obligated to accommodate the employee. An employment attorney will be able to walk you through whether you should accommodate the employee and make an exception for the employee.
If the employee is claiming their speech or attire is related to a different protected class, an employment attorney can walk you through the best way to proceed to ensure you are protected from a discrimination complaint.
Can I lawfully discipline or terminate an employee for off duty political speech or conduct?
No. Employees who engage in political speech or conduct off duty may not be lawfully disciplined or terminated for that engagement.
However, if the employee engages in off duty political speech or conduct while representing the company (i.e. wearing a company logo), the employee may be able to be disciplined under a company policy that prohibits employees from implicitly or explicitly speaking on behalf of the company.
Further, if the off duty political speech or conduct is impacting the workplace, such as instances where another employee has reported the speech or conduct as making the employee uncomfortable, the employer should investigate that concern, as explained further below.
Can I lawfully discipline or terminate an employee for political speech, on duty or off duty, that other employees have reported as making them uncomfortable?
Maybe. If you receive a report of conduct from an employee that is making other employees uncomfortable, you should investigate the claim.
If, after an investigation, the company determines the conduct violated the employer’s policies, you can consider disciplinary action that is in line with discipline issued against other employees who have violated the policy in question.
Although the NLRA protects employee’s speech related to employment, it does not protect speech that is abusive, discriminatory, derogatory, or significantly disruptive.
I am a private employer. Are my employees protected by the First Amendment?
No. The Constitution only protects individuals against governmental interference. If you are a private employer, your policies generally cannot violate anyone’s First Amendment rights.
What policies should I implement ahead of an election year?
We suggest that all employers ensure they have the following policies implemented:
- An enforceable dress code policy that is neutral (applied to all employee’s attire equally) and does not violate NLRA protections.
- An enforceable code of conduct policy that prohibits abusive, discriminatory, derogatory, or significantly disruptive speech.
- A policy regulating which employees are able to speak on behalf of the company.
- A reasonable accommodation policy that can be used by employees to request an accommodation based on disability or religion.
- A discrimination or harassment policy with clear reporting chains.
You should also ensure all managerial and human resource employees are up-to-date on reporting and investigation procedures.
Please reach out to Melissa Caulum Williams, Senior Counsel at Husch Blackwell, or your employment attorney if you have questions about this and/or to ensure your policies are enforceable.