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Politics and Work

If you’re not an American history enthusiast, you might not know that our current political climate, filled with insults and injuries, is nothing new. In his article, “Donald Trump and the Long History of American Politics Turning Violent,” Matt Taylor recounts how prominent politicians such as Aaron Burr, Alexander Hamilton, and Andrew Jackson “were almost as notorious for their pistol duels as their politics” and their followers often engaged in fisticuffs as well. Taylor quoted Noah Feldman, a Harvard legal historian, who said that our country’s early political campaigns were “raucous and unruly” and “all of politics was just much, much wilder.”

That information might mean that we no longer have to shake our heads and wonder what our country is coming to; however, it doesn’t mean that we should allow people to be raucous and unruly at work.

Perhaps your workplace has not been subjected to such behavior yet, but it’s good to be informed and ready in case it does. The primary thing that employers need to know about politics at work is that the National Labor Relations Act gives employees the right to talk about politicians and political issues when those topics are work-related.

Section 7 of the NLRA prohibits employers from preventing their employees from discussing the terms and conditions of their employment. Therefore, employees may not be prevented from discussing Candidate X when that discussion is really about the candidate’s push for a higher minimum wage or something that could affect employees’ working conditions. But, employees may be prevented from discussing Candidate X when that discussion is really about the candidate’s stance on abortion or something else that has nothing to do with work. The same rules apply to clothing. For example, employees may be prevented from wearing a “Vote for Candidate X” shirt, but may not be prevented from wearing a “Vote for Candidate X because he’ll raise the minimum wage” shirt.

Having said all of that, employers still have the right to put a stop to any communication or behavior that is negatively affecting productivity or causing distractions whether that communication or behavior is considered to be protected or not.

Another thing that employers should know is that California labor code section 1101-1106 restricts them from preventing employees from participating in politics, controlling employees’ political activities, coercing employees toward or away from any political action, discriminating against employees for their political activity or affiliation, and/or retaliating against employees for complaining that employers did any of the aforementioned things.

Even so, employees should know that posting their opinions about political issues that are not work-related might get them into trouble at work, even when the posting is done on their own time using their own electronic device.
For example, Curt Schilling, a former All-Star pitcher, was fired from his job as an ESPN baseball analyst in April because of a Facebook post that shared his opinion about transgender people being allowed to use the restroom that corresponds with their gender identity. The post shows a picture of what is obviously a man dressed as a scantily clad woman with this message: “LET HIM IN! to the restroom with your daughter or else you’re a narrow-minded, judgmental, unloving racist bigot who needs to die.”
To that, Schilling added: “A man is a man no matter what they call themselves. I don’t care what they are, who they sleep with, men’s room was designed for the penis, women’s not so much. Now you need laws telling us differently? Pathetic.”

Soon after, ESPN issued a statement that said, “ESPN is an inclusive company. Curt Schilling has been advised that his conduct was unacceptable and his employment with ESPN has been terminated.”

Although history might just be repeating itself, allowing political behavior at work that is raucous and unruly is not recommended.

Disclaimer: The information and resources provided herein are not a substitute for experienced legal counsel and does not constitute legal advice or attempt to address the numerous factual issues that inevitably arise in any employment-related dispute. Although this information attempts to cover some major recent developments, it is not all-inclusive, and any recommendations are based upon HR best practices and procedures. We recommend you consult an attorney for legal guidance.

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