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Political activity in the workplace: Can you discipline employees?

by on
in Employment Law,FMLA Guidelines,Human Resources

The upcoming elections will highlight partisan politics and controversial issues affecting employees. No doubt, your workplace will be the site of some political discussions—and maybe overtly political activity. You need to understand when you can and cannot discipline employees for political activity.

What if some employees do not show up for a scheduled shift to attend a political rally in favor of a controversial ballot measure? What if you learn that, in their off-duty time, they are campaigning for the act? What if a group of employees walks off the job, protesting your sick leave policies?

NLRA protects worker advocacy

The National Labor Relations Act (NLRA) protects some forms of workplace political advocacy. Although the NLRA generally governs unionized workplaces, some of its protections extend to all employees in both unionized and nonunionized settings.

Specifically, Section 7 of the act protects concerted activity for “mutual aid and protection.” That means you may not discipline employees who engage in conduct designed to make the employer aware of concerns related to wages, hours or working conditions.

It’s why employers cannot, for example, discipline employees for discussing their wages for the purpose of advocating for better pay.

On July 22, 2008, the National Labor Relation Board (NLRB) issued a memorandum spelling out when political advocacy is protected. Employers may be held liable under the act if they discipline employees for engaging in protected activity. The memo clarifies where protected political activity ends and unprotected activity begins.

The board issued the memorandum in response to numerous unfair-labor practices charges filed in late 2006 by employees who had been disciplined for participating in demonstrations protesting pending legislation that would have imposed greater restrictions on immigrant employees and their employers.

Advocacy subject matter and purpose

According to the memorandum, employers must consider two key components in determining whether a particular act of political advocacy is protected. The first is whether the subject matter of the advocacy is protected. The second is whether the particular advocacy activity falls within the act’s protections.

Advocacy concerning an employee’s own immediate terms and conditions of employment, as well as advocacy in support of employees of other organizations is protected if there is a “direct nexus between the specific issue” being advocated and “a specifically identified employment concern of the participating employees.” Thus, appeals to legislative bodies and governmental agencies are considered to be protected if the subject matter relates directly to employee concerns.

In contrast, the act does not protect complaints to governmental bodies that do not involve working conditions. Similarly, the act does not protect advocacy supporting purely political issues or candidates not related directly to workplace concerns.

Activity by proper means

Employees do not have carte blanche to carry out protected activity in any way they choose. The NLRB memorandum lays out the proper means for employees to perform protected activities and still remain under the NLRA’s protection. Three rules apply to determine whether an activity is protected.

1. Political activity occurring during nonwork time
and in nonwork areas is generally protected.

2. On-duty political advocacy related to a specifically identified employment concern
is subject to restrictions imposed by lawful and neutrally applied work rules.

3. Leaving or stopping work to engage in political advocacy
may be subject to restrictions imposed by lawful and neutrally applied work rules. Note, however, that an employer generally cannot discipline or discharge employees who leave work without permission if their walkout is for the purpose of obtaining some improvement in their own working conditions from their employer. The act protects walkout if they are directed at an issue over which the employer has full control.

Navigating the minefield of the NLRA can be difficult even for experienced labor attorneys. Common sense does not always apply to interpretation of its complex rules. Employers should review their applicable policies and procedures to ensure that they are neutral and effective. Consult with an attorney before taking disciplinary action against employees for engaging in acts of political advocacy.

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