San Francisco, CA/ October 30, 2006 -- As the 2008 presidential campaign heats up and state elections approach, so may tempers on the job. Talking, and playing, politics at the office has already caused headline news. Policy enthusiasts are spending hours in the workplace on Fantasy Congress' Web site, www.fantasycongress.us, discussing the senators and congressmen on their teams and changing players as soon as scandal hits a particular lawmaker.
Many people wrongly assume the U.S. Constitution and the Bill of Rights entitle them to express their political views whenever and wherever they wish, according to attorneys with Littler Mendelson, the nation's largest employment and labor law firm. In fact, workers at private-sector companies that are employed at will, can be terminated for their political beliefs as long as their dismissal complies with employment statutes and does not run afoul of other state-law guarantees.
"The Bill of Rights, including the First Amendment's protections of free speech, does not apply directly to private-sector entities," said Peter Susser, a partner in Littler Mendelson's Washington D.C. office. "Tension and conflict often result when employees lack direction and are confused about what they can and cannot say and do."
Employers have the right and responsibility to ensure that work environments are safe, are free of hostility and conducive to productivity. That includes protecting their employees from being badgered or pressured by overzealous political advocates. In many cases, employers have the legal right to limit or prohibit political expression during work hours. Even in states with laws protecting political expression, employers still retain broad powers to restrict workday activities to business pursuits.
Susser said private employers can:
- Limit employee political activities that have an impact on the workplace by implementing rules prohibiting various activities, like political campaigning during business hours.
- Enforce general, uniform rules about employees' personal appearance or work-area decor – making sure all employees are treated equally. For example, retail workers who come into contact with customers can be prohibited from wearing political campaign tee shirts or buttons.
- Adopt and enforce "no-solicitation/no-distribution" rules, which limit soliciting support for and distributing literature about various types of non-work activities, ensuring that they are applied to political campaigning. The rules should be applied in a uniform and evenhanded way, but should not be so overbroad as to prohibit protected activities, such as the right of workers to discuss union-related issues on non-work time in non-work areas. Susser advises that employers seek legal counsel to draw up appropriate work rules.
- Adopt and enforce policies dealing with workplace technology, including the restriction of e-mail to work-related activities. In this way, employers can declare political campaigning using company e-mail to be off limits.
"Employers are allowed to adopt these practices in the interest of their company's efficiency and to keep employees focused on the job," Susser said. "To ensure prudence, it's typically best to keep politics out of the workplace during business hours."
For public-sector companies, government employees do have certain rights to political expression on the job because the U.S. Constitution and Bill of Rights relate to actions by the government, including those taken in the role of "employer." Even in such settings, however, there are statutes and regulations that may limit political activities of public employees, both on the job and – in some cases – off-the-job.
To speak with Littler Mendelson attorney, Peter Susser, regarding the development of clear policies on political activity and expression, please contact Jennifer Myres at (619) 234-0345 or firstname.lastname@example.org.
About Littler Mendelson
With more than 500 attorneys and 37 offices in major metropolitan areas nationwide, Littler Mendelson is the largest law firm in the United States devoted exclusively to representing management in employment, employee benefits and labor law matters. The firm's client base ranges from Fortune 500 companies to small-business owners. Established in 1942, the firm has litigated, mediated and negotiated some of the most influential cases and labor contracts in the nation's history. For more information, visit www.littler.com.