Protected Speech

Political Talk election

Political table talk is making employers sick.

By Dana Chang

Whether your preferred candidate won or lost, the universal sentiment is relief that the campaigning and mudslinging is over. Although the presidential election may be behind us, the wide array of controversial, political topics, including race relations, immigration, women’s rights and LGBT rights, are still front and center. These critical issues for the American public are often part of dinner table conversations – and workplace chatter.

For those who work in the hospitality industry, this can create an uncomfortable atmosphere. While politics is always a thorny topic, it is Political Talk White Houseexacerbated by the ubiquitous national conversation immediately following a presidential election. With guests and customers eager to converse, it is not unlikely that political issues will become the topic of conversation. Yes, political discourse can be constructive, but, frequently, it is divisive.

Employers often find that political discussions adversely affect productivity, work relationships and customers’ dining experiences. For restaurants, hotels and resorts, where convivial conversation is important, the possibility that political discussions can evolve into bitter quarreling is problematic.

Many people have strong views on political topics such as religion, gender equality and LGBT rights and are personally affected by these issues. Employers and their HR departments should be cognizant of the possibility that employees’ conversations on these polarizing topics, which are also closely intertwined with protected classes under civil rights laws, can elicit emotional reactions from employees and customers alike.

Employees’ statements on these topics may be considered the companies’ views or positions and may manifest into complaints against the company. For this reason, it’s in the best interest of the company and its employees to find ways to minimize political discussions at the workplace.

Concerted Activity

Generally, private employers may restrict employees’ speech in the workplace during work hours. The key word, however, is “generally.” There are circumstances where it is unlawful for an employer to restrict certain political speech. For example, some speech may fall under the protection of the National Labor Relations Act (“NLRA”). Section 7 of the NLRA protects the rights of most private sector employees, both union and non-union alike, to engage in “concerted activities.”

Concerted activity is when employees take action related to the terms and conditions of their employment. This includes discussions of paying men and women equally for equal work and concerns about paid medical leave. Because these subjects were a significant part of this year’s presidential election, employers must be careful not to place a blanket restriction on all political speech.

Employees’ out-of-work speech may be protected, also. The NLRA protection extends to concerted activity both on and off work premises. Under the NLRA, employees’ Facebook posts and Twitter tweets may be protected activity if employees are using the social media platforms to discuss the terms and conditions of their employment. Additionally, some states, such as California, Colorado, North Dakota and New York, have laws that prohibit an employer from punishing an employee for political activity outside of work.

Special Circumstances

In a restaurant, at the front desk of a hotel, at the concierge desk of a cruise ship or behind a computer screen, employees enjoy Section 7 Political Talkrights to discuss the terms and conditions of their employment, even when, to employers’ dismay, these discussions occur in front of guests. There is, however, a narrow “special circumstances” exception to employees’ rights that employers in the hospitality industry may seek to utilize to prohibit certain discussions in front of customers.

Under this exception, an employer may lawfully prohibit its employees from engaging in communications on the job that may harm its relationships with its customers or its public image. Employers should not hang their hat on this exception, however, because it has been narrowly and inconsistently applied. The best advice is tread lightly and consult with counsel. Employers should confer with counsel prior to implementing a workplace policy to ensure that it does not violate federal, state or local laws.

If implementing a policy that restricts political speech or speech in front of customers, the policy should provide a carve-out for speech that may be protected by Section 7 of the NLRA and other applicable laws. Alternatively, rather than singling out political speech, employers may seek to prohibit disruptive workplace activities generally. This type of restriction allows employers to control political speech by dealing with the impact on productivity or customer relations, rather than the content of the speech itself.

Employers may also consider implementing an anti-discrimination and anti-harassment policy that targets and restricts offensive speech that could become the subject of a claim of discrimination or harassment. With any policy, employers should be careful to apply and enforce it consistently to all employees to avoid allegations of disparate treatment or retaliation.

Certainly, employers will not be able to prohibit all political conversations in the workplace. With several competing interests to consider, employers in the hospitality industry should consult with counsel to establish appropriate policies.

Dana Chang is a labor and employment lawyer with the Fort Lauderdale office of Fisher Phillips, representing management in all areas of employment law. Chang can be reached at dchang@fisherphillips.com.

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