There are certain events that can bring colleagues together inside and outside of work, such as the Olympics, natural disasters, and sports in general. But there are also events which can create division among those same employees, such as elections, whether on a federal, state, or local level. As we gear up for the 2024 Presidential Election, employers may be anxious about political discourse and how to handle it. Have no fear! There are actions employers can take to minimize discord and disruption in the workplace when political beliefs clash.

Do you know the applicable law in your state? Employers need to first know the law, namely, what is protected, if anything, under the law in their jurisdiction regarding political views. There are different protections in some states for political affiliation and political activity. Political affiliation usually refers to an employee’s association with or support of a particular party or ideology, whereas political activity typically refers to an employee’s engagement in certain activities such as running for public office, volunteering for a political campaign, supporting or opposing a recall, referendum or other initiatives, voting, or attending rallies and protests. While few states have protections for political affiliation, many states have protections for some form of political activity which also prohibits employers from intimidating, threatening, or coercing employees from voting or voting in a certain way. In addition, there is a misconception that private sector employees’ political beliefs are protected by the First Amendment. This is false as the First Amendment solely protects employees who work in federal, state, or local governments with regard to discrimination based on political beliefs.

How do the above protections impact my business? Employers in the private sector should know that political affiliation is not a protected factor under federal law. However, while not common among all states, political affiliation is a protected factor in some states. For example, in the District of Columbia, employers may not discriminate against employees based on their association or support of a particular political party. Several states, such as Arizona, California, the District of Columbia, Illinois, New York, and Ohio, also have some form of protection for employees who engage in political activity. Thus, knowing what is or is not covered in the states in which you have employees working is vital, especially for employers with remote employees.

How do you respond to political discord in the workplace? An outright ban on all political activity because of political strife at work is not recommended. Implementing such a ban could create legal risks for violation of the National Labor Relations Act, which applies in both unionized and non-unionized settings, and prohibits bans on employees engaging in protected concerted activity. This includes discussions about terms and conditions of employment which may be influenced by support for a political candidate. Moreover, other anti-discrimination laws could be triggered by an outright ban if employees perceive the ban to be in place solely to restrict advocacy for a particular candidate who may be favored by employees of a certain race, sex, or other protected factor.

• Foster Inclusivity. Civil discourse can be healthy, especially when employers encourage inclusion among staff, urging them to find commonalities instead of focusing on differences when it comes to political opinions. So, be open to employees having conversations in the workplace about the upcoming election, while reminding them of the importance of being respectful of diverse views on the matter. This may also minimize political conversations from becoming a disruption to business operations. Again, while messaging the importance of inclusion, employees should be reminded to avoid making assumptions about someone’s political views based on their race, gender, or other protected factor. 
• Uniformly Enforce Policies. If an employer has a policy about workplace politics, solicitations, or campaigning, it should be communicated and uniformly enforced among all employees. It is not unusual for claims of discrimination to arise from unequal enforcement of policies. Namely that they are being used to single out certain employees, subjecting them to unfair treatment. Thus, training and communications about such policies, assuming they follow the law, is imperative.
• De-escalate Conflict. Should political conversations, or any conversation for that matter, get out of control, do not ignore the issue. Intervene as soon as possible to focus on resolution and de-escalation. Allowing tension to linger can lead to claims of a hostile work environment, as well as retaliation. Remember, ignorance is not a defense. But also, there is a difference between respecting opposing views and illegal conduct, such as bullying, harassment, and discrimination based on contrasting opinions.

Lastly, while employees may disagree on political topics, they should be encouraged to make their voices heard by voting. Therefore, employers should know the voting leave laws applicable to their workplace which may grant employees a certain amount of leave that can be used during the day to vote.

Any type of disagreement in the workplace can be distracting and there is no one-size-fits all method to address this. However, using measured, thoughtful, and reasoned approaches can minimize disruption and potential exposure to liability for employers. Thus, focusing on proactive problem solving will aid you in navigating this election cycle.

Please reach out to Tiffany Releford or any member of the Ice Miller Workplace Solutions Practice Group if you have questions regarding your workplace policies or practices.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.