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Is political banter protected speech?

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in Employment Law,Human Resources

With the midterm election approaching, employees may be ratcheting up their rhetoric for or against issues and candidates in the political arena. Much of that talk is likely to continue past Nov. 4.

If your workplace seems as politically divided as the country, and the atmosphere is getting nasty, it’s time for you to step in.

But will you be trampling on employees’ First Amendment rights if you ban all political talk?

First of all, employees have no constitutional right to freedom of speech in a private workplace. The right to free speech only applies when the government is trying to restrict it. That means you have discretion to limit your employees’ political expression and can enact a ban on political discussions in the workplace.

Only employees in the public sector—those who work for government entities—have First Amendment rights in the workplace, subject to significant limitations.

Important point: The absence of a direct First Amendment free speech right does not give employers free rein to discipline or retaliate against workers for their speech or actions. Certain laws do provide employees with some protection for certain types of expression at work.

For example, the National Labor Relations Act (NLRA) says workers in both union and nonunion workplaces are free to discuss pay, benefits and other work conditions without retaliation. In some cases, that might even extend to talking about politics, according to the National Labor Relations Board. Employers can restrict some political expression—for example, banning retail employees from wearing campaign buttons—but generally can’t forbid employees from discussing current events.

Title VII of the federal Civil Rights Act and several other laws give workers the right to voice complaints—free from retaliation—about perceived workplace discrimination, harassment or other injustices.

And several whistle-blower laws give employees protection to speak out against perceived illegal injustices they see at work.


Don’t ban it, manage it

A ban on political talk in the workplace may harm morale—and might be difficult to enforce. Attempt to balance employees’ political discussions with maintaining productivity, safety and a positive working environment. Remind employees that political discussions must be respectful and civilized and will only be permitted if they don’t disrupt productivity. Set out these rules in a policy and notify employees about them during a training session or meeting.

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