Everyone ok out there?

Election Day is Nearly Here

What a wild couple of days we’ve had in Connecticut and, for those still without power, it’s not over yet.  Much like Irene and the October snowstorm before it, Sandy has left her mark. 

But it’s time to get back to business today. We’re less than a week away from the election. 

And a question that has been on the minds of many this year is the extent to which employers can (or should) talk politics in the workplace.

Lots of posts have been written about it, so I’m not going to try to reinvent the wheel here. Rather, I’ll attempt to highlight some key issues to think about.

Robin Shea, of the Employment & Labor Insider, is quick to note a new November rule: “If your candidate won, do not “spike the ball in the end zone” at work. Wait until you get home. If your candidate lost, wish the winner well, or say nothing. Mourn for the demise of our once-great nation when you get home. ”

But Robin is quick to add a number of important tips about understanding when political speech is protected by the NLRA and when employers should be “very careful” about engaging in political speech of their own.

The Duff on Hospitality Law blog has some helpful tips too saying that just because it may be legal to express your endorsement of a candidate and to relay that to your employees, that doesn’t make it a good idea.  “The real risk of such public endorsement (and perceived veiled threats) in the workplace is the inherent tension and negative atmosphere that results.”

Stoel Rives World of Employment blog provides some do’s and don’ts as well. Among them: “Do set the tone” and “Don’t allow bad behavior in the name of ‘free speech’.  Importantly, it notes that employers should be aware of any state or local laws that may provide greater protection to political speech.

Connecticut may be one of those states. As I’ve discussed before, Section 31-51q of Connecticut law, applies First Amendment protection to private employee speech. So, be cautious of posts that say that the First Amendment doesn’t apply to the private workplace — Connecticut law is different. 

The Proactive Employer blog reminds readers that to many of us, voting is a personal issue.

While employers may have the legal right to voice their opinion and tell you how they think you should vote, last I knew actually casting your ballot was a personal choice and a confidential matter. Though I in no way agree with employers using intimidation tactics or attempting to control employees, perhaps we should quit wasting time questioning employers’ motives and possible unethical behavior regarding politics.

There are plenty of other good pieces on this issue too, including posts from Employment Law Daily here and here.  The New Jersey Human Resources blog discusses the issue here and the Fisher and Phillips blog/newsletter on the subject is here too.   

In short, politics and the workplace are a dangerous mix. Before you delve in too deep, understand the limits to employer speech and the protections afforded to private employees.