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Are we allowed to do anything that limits political expression at work?

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in Compensation and Benefits,Employment Law,Hiring,Human Resources,Leaders & Managers,Preventing Workplace Violence

Q. Some union employees are wearing buttons and T-shirts as well as posting signs advocating presidential candidates. At first it was not bothering anyone, but now it has gotten out of hand. Is there anything I can do to prevent employees from exhibiting their political views in the workplace?

A. Yes. Employees engaging in political activities while on duty are “subject to restrictions imposed by lawful and neutrally-applied work rules” and may be disciplined if the issue they are advocating for has no direct nexus—or connection—to employee working conditions.

The National Labor Relations Board (NLRB) addressed this issue in a memorandum published in July 2008. It said an employer must complete a two-step analysis to determine whether an employee’s political advocacy is protected activity under the National Labor Relations Act.

First, employers must determine whether the political advocacy qualifies as concerted activity for “mutual aid or protection” under the act. Specifically, employers must determine “whether there is a direct nexus between the specific issue that is the subject of the advocacy and a specifically identified employment concern of the participating employees.” Issues falling into this category include visas for foreign workers, minimum wage, right-to-work provisions, drug testing and workplace safety standards.

Second, even if the political advocacy has an appropriate connection to an employment concern, the employer can still prohibit the activity if it is carried out by unprotected means. Thus, while passing around a petition at lunchtime over a work-related political issue may be protected, a work stoppage or slowdown would lose protection.

The NLRB specifically held that “purely political tracts that call for the election of a particular slate of candidates without reference to any particular employment-related issues, are too attenuated from employees problems and concerns to constitute mutual aid or protection.”

Therefore, if employees are simply wearing T-shirts and buttons advocating for Sen. Obama or Sen. McCain to be president of the United States, you may institute a neutral work rule prohibiting wearing any candidate’s political gear in the workplace. Contact your attorney if workplace campaigning goes to specific labor issues.

These guidelines apply to both unionized and nonunion employers, as the concept of “mutual aid or protection” does not distinguish between employees who are represented by a union and those who are not.

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