What are the top labor law considerations for HR ahead of November's Election?

In May 2024, Littler published its annual Employer Survey report. In the report, 87% of the employer respondents expressed concerns about “managing divisive political and social beliefs among employees leading up to the 2024 election.”

As an employment law academic & multi-certified HR professional, this immediately brought questions to my mind: How can employers handle workplace conflict? What’s the best practice for managing employees who engage in political solicitation at work? Are employers mandated to give their workforce time off to vote?

No doubt these are many of the questions facing you as an HR professional ahead of November’s Presidential Election.

Consequently, in the first of a series of columns addressing your queries on compliance, labor law, and HR best-practice, I address some of the top HR and legal issues employers should consider to ensure compliance with federal, state, and local laws and to maintain a respectful and productive work environment.

If you have any topics or questions you’d like me to address in my next column, please leave me a comment or email [email protected].

But for now, the following are five crucial topics to consider:

1. Political speech in the workplace

Attitudes about discussing controversial topics in the workplace have changed, and according to SHRM, “83% of workers overall said they had conversations about politics at work.” Therefore, in an era of increased polarization, employers must navigate a fine line between respecting employees’ rights to express political views and maintaining a non-hostile work environment. Government employers may not limit political speech due to employees’ free speech rights under the First Amendment of the US Constitution. In contrast, even though private employers may limit political speech, legal experts advise against completely prohibiting political speech in the workplace. Furthermore, both private and government employers must not violate employees' rights under the National Labor Relations Act (NLRA), which protects certain political speech related to the terms and conditions of employment. These rules apply in both union and non-union workplaces.

Employers also may not regulate political speech by incentivizing employees to vote in a specific way because doing so violates the Federal Election Campaign Act (FECA) and can run afoul of state coercion laws. Additionally, this practice is prohibited by 18 U.S.C. § 597, which makes it illegal to offer money, employment benefits, or any other incentives in exchange for voting, withholding a vote, or voting for or against any candidate in federal elections. Criminal penalties include fines and imprisonment. Therefore, employers’ communications regarding elections should be neutral and avoid any attempt to influence employees' votes through financial incentives, threats, or promises.

2. Handling and preventing conflicts resulting from politics in the workplace

Due to heightened political tensions, employers should be prepared to handle workplace conflicts that arise from political speech and activities.

Consequently, employers should establish policies that set expectations for appropriate and inappropriate behavior. For example, employers can create and implement a dress code or appearance policy prohibiting employees from wearing apparel and accessories with political statements.

Companies may also consider implementing and enforcing respectful communication policies, providing training on conflict resolution, and reaffirming their commitment to a respectful workplace culture that fosters inclusivity. Finally, employers must consistently enforce these policies to avoid claims of discrimination, retaliation, or favoritism.

Employers should consult the specific voting leave laws in their operating states

3. Time off for voting

No federal statute mandates time off for voting in the United States. However, many state laws have voting leave laws requiring employers to provide employees time off to vote. Each state has rules regarding whether the time off must be paid or unpaid, how much time must be given, and whether employees must provide advance notice or proof that they voted. Employers should consult the specific voting leave laws in their operating states to ensure compliance with state regulations.

4. Protection against political affiliation and activity discrimination

Political affiliation discrimination usually refers to discrimination based on an individual’s political beliefs or membership in a political group. In contrast, examples of political activity discrimination might include refusing to hire someone because their social media activity reveals that they support a particular candidate or threatening to discharge or terminate an employee for voting for a particular candidate. Federal law does not protect private employees from political affiliation or activity discrimination.

However, some states and localities protect political affiliation and activities via their anti-discrimination laws. Additionally, government employees’ political activities are protected if they occur outside of work, and some states have laws that prohibit both private and government employers from making employment decisions based on an employee’s legal, off-duty activities. Therefore, as a best practice, employers should refrain from making employment decisions (hiring, firing, promotions, etc.) based on an employee’s political beliefs, party affiliations, or civic activities.

5. Electioneering and non-solicitation policies

As a preventative measure, employers should consider establishing policies prohibiting employees from engaging in political activities, such as campaigning or distributing political literature during work hours (except for personal time, such as breaks and meals). However, when employers implement non-solicitation rules, enforcement must be consistent. For example, if employers allow employees to post sign-up sheets for their children’s fundraisers in the breakroom, they must also allow employees to post political rally sign-up sheets. Finally, employers should ensure that their non-solicitation policies distinguish between union-related activities or other actions taken for employees' mutual aid and protection, which might qualify as protected concerted activities under the National Labor Relations Act.

In the current polarized and divisive political environment, thoughtfully considering these human resources and legal issues will help employers avoid legal risks and maintain a positive workplace environment during this election season.

Vanessa L. Johnson, MBA, MACC, JD, LLM-Tax Law, LLM-Health Law, is a licensed attorney, Associate Professor of Legal Studies at the University of Houston-Clear Lake, and multi-certified HR professional (SPHR, GPHR, SPHR-CA, SHRM-SCP, CMS) with over 20 years of HR and employment law experience. She has also been serving as a part-time HR consultant since 2021.