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Managing Workplace Policies Around Employees’ Off-Duty Political Activity
As political activism becomes more prevalent, employers often face complex questions about workplace policies, employee rights, and off-duty conduct. These FAQ address common concerns and provide guidance on how to navigate employment issues when members of your staff participate in external protests or use their social media accounts as a platform for political expression.
Political expression typically includes speech, attire, and displays supporting or opposing candidates, political parties, legislation, and social movements such as #MeToo. It is not quite the same as social expression encompasses advocacy on broader societal issues, which sometimes overlap with politics or religion.
Do I have to allow an employee to take time off to attend a protest?
No, neither state nor federal law requires employers to provide time off to employees who wish to attend a protest. Employers may treat an employee's time-off request to protest as they would any other leave request. Internal policies regarding advance notice, scheduling needs, and use of paid time off would apply in these circumstances. Employers may also discipline employees who violate these policies and procedures just as they would any other employee.
Can I discipline an employee for calling out sick or missing a shift because they are participating in a march or protest?
Employers may discipline any employee who violates internal attendance or leave policies as long as disciplinary action is leveled consistently. For example, if an employer would discipline an employee who called out sick but was shown to be at a ballgame that day, the employer could do the same if that person were instead at a protest.
Are employees allowed to bring protest materials into the workplace?
This is governed by employer policy. Signage, apparel, and other items that people may use to communicate a protest message may be prohibited from the workplace. Employees who claim First Amendment rights should be educated that those rights protect against governmental prohibitions on free speech, not restrictions from private employers. Review policies on dress codes, office décor, and employee conduct to ensure the language addresses such materials.
What employee speech is protected in the workplace?
While the First Amendment right to free speech does not apply in private workplaces, employees do have the right to talk about possible unlawful conduct in the workplace. Under various federal laws, employees may complain about harassment, discrimination, workplace safety violations, and other issues. However, employees don't have the freedom or right to express racist, sexist, or other discriminatory comments in the workplace.
Can I fire an employee who was arrested at a protest?
Terminating an employee for lawful off-duty conduct may be a violation of state law. However, if an employee engages in unlawful conduct during a protest, the employer will need to investigate the circumstances to determine if the conduct impacts the employee's ability to perform their job. An employee may be suspended or terminated if the employer's investigation indicates that the employee did, in fact, engage in conduct that makes the individual unfit for their position. If an employee's arrest causes the employee to be absent from work, the employer's normal attendance policies will apply.
What steps should HR take when employees’ social media activity reflects negatively on the organization or creates workplace tension?
HR should begin by reviewing the organization’s social media and conduct policies to ensure they clearly outline expectations and potential consequences. Assess the specific nature and impact of the activity, distinguishing between personal expression and posts that violate policy or create a hostile environment. Engage in a confidential, impartial investigation to gather facts and context, considering whether the activity is protected under labor laws.
If the conduct is found to violate company policies, interventions could include coaching, counseling, or formal warnings. Termination should be reserved for severe, repeated violations or activity that directly harms the organization’s reputation or violates legal or policy standards. It is important to consistently document all steps taken and consult legal counsel before any disciplinary action, especially when political speech is involved, to minimize legal risk and ensure fair treatment.
What guidance can HR provide to managers about discussing or disciplining off-duty conduct that impacts workplace culture or reputation?
HR should advise managers to approach off-duty conduct with caution and consistency because many states — including California, Colorado, and New York — have laws that protect employees from discrimination or retaliation for lawful off-duty activities such as political expression or protest participation.
Managers should be trained to focus on objective, work-related impacts rather than personal beliefs and to avoid addressing employees’ off-duty conduct unless there is a clear, demonstrable effect on workplace performance, safety, or reputation. HR should provide clear guidelines and decision trees to help ensure that any action is based on documented policy violations rather than subjective judgments. Legal consultation is essential before taking disciplinary action because missteps can result in costly litigation or reputational harm.
This article is courtesy of Society for Human Resource Management (SHRM)
