Regulating the Workplace During the 2016 Presidential Election

By: Shelbie Byers, Drewry Simmons Vornehm, LLP

Aside from some statutorily protected rights for employees who make reports of workplace harassment or whistleblowing, participate in workplace harassment or whistleblowing, and some applicable rules regarding protected concerted activities, private employees have no “free speech” rights in the workplace. Yes, you read that correctly: there are no free speech rights for employees working for private employers. Many employers and employees alike may not realize employees may legally be subject to discipline up to and including termination of employment for political posts. While certainly some banter may be expected from time to time around the watercooler, when political discussions get out of hand, interfere with workplace operations or lead to vulgar or violent language, employers can discipline their employees as they see fit for such conduct.

Employees may also find themselves in hot water for sending politically charged emails on personal or company email or posting inappropriate, unethical or otherwise distasteful social media political posts, whether done on company time or not. Typically, such conduct would be in violation of other workplace policies and practices which are usually found in handbooks, such as a workplace violence policy, harassment policies, workplace conduct rules regarding use of professional language or social media and other policies to which employees are already subject to, regardless of the election year. Many employees fail to realize that when they work for a private employer, they do so, typically, as an employee at will, which means that their employment can be terminated with or without cause and with or without notice, including, termination based on political postings.

As we head into the homestretch of the 20016 election, employers or Human Resource managers may find it helpful to remind employees of the expectations of the Company with regards to politically charged expressions in and outside the workplace.