With this year’s election season being particularly heated and the temperature still rising, both employers and employees should be cautious about politics on the job.
The First Amendment generally won’t help those whose political passions boil over at work and an employer can generally limit employees’ political speech in the workplace.
A cautionary tale unfolded in Alabama in 2004 when Lynne Gobbell of Moulton, Ala. put a sticker on her bumper supporting the Kerry/ Edwards presidential ticket. Little did she know that her employer, Enviromate, had a policy banning any form of political expression on company property. Enviromate promptly fired her.
Admittedly, Colorado is one of only four states to offer some job protection for employees who get involved in politics. Section 8-2-102, C.R.S., for example, specifies (among other things) that it is unlawful to discharge or threaten to discharge an individual because of his or her connection to a political party, while another statute states that employers may not prevent employees from “participating in politics.” (C.R.S. 8-2-108)
But these provisions are vague and employees should tread warily: While an employer cannot discriminate against you because you’re affiliated with a particular political party, remember that if you’re focusing on politics to the detriment of your job, you may be open to performance-related dismissal. Too much time spent volunteering, canvassing and attending political events may be detrimental to job performance.
Employers, too, should be cognizant of the fine line between expression and harassment in the workplace. When it comes to political expression at work employers should be mindful of the following:
• Monitor political discussions at work – politics can be fractious and may expose sharp differences about irrelevant issues. Don’t allow politics to be discussed at formal meetings and head off heated discussions that may be construed as harassment.
• Ensure that policies regarding politics in the workplace are objectively developed and enforced.
• Remain neutral and comply with state laws regarding voting time. Employers should facilitate and encourage employees to vote, but never for a particular candidate. Under Colorado law, all employers must allow employees at least two hours to vote if the employee is not scheduled to be off for at least three hours between 7:00 a.m. and 7:00 p.m. Employees must receive their standard pay during this timeframe. The employer is allowed to establish when you may leave to vote.
• Avoid pushing partisan political agendas: employers and managers make themselves vulnerable to legal action if they spread political propaganda.
• Do not solicit funds on behalf of outside political interests and don’t allow employees to do so – such requests may be illegal. And employees should never feel coerced into contributing to a political cause or candidate as a condition of employment.
• Employers should avoid inappropriate jokes, jabs or comments about political affiliations – even if made in jest. Comments like “You’re only supporting her because she’s a woman” can turn into a world of trouble for employers. And gloating after a political win only causes further discomfort.
Todd Fredrickson is managing partner of the Denver office of Fisher & Phillips LLP, representing employers nationally in labor, employment, civil rights, employee benefits and immigration matters. Contact him at email@example.com or 303.218.3660