Politics in the workplace- everyone’s favorite topic, yes? Not quite. But it’s a U.S. election year and leaders are remiss if they don’t plan ahead for Election Day and beyond, especially given the polarization and zero-sum nature of discourse that has come to characterize so much of daily life, including, unfortunately, worklife.
Easy Win
Let’s start with an easy win: reminding employees of the right to vote and encouraging those who are eligible to cast their ballot. Federal law doesn’t require employers to provide time off to vote but some states do, including California, New York, and Texas, each of which mandates paid voting leave for employees who don’t have sufficient time to go to the polls outside of normal working hours. Even where the law doesn’t guarantee paid voting time off, companies can of course offer employees this right as a matter of internal policy. And many do – either because it aligns with the company’s culture and values or, more pragmatically, it ensures their employees in different states are treated consistently.
Other Time Off Scenarios
Voting isn’t the only thing that might occupy employee attention during election season. Some may wish to volunteer for a campaign or at the polls. Others may find the waiting game for election returns to be an anxiety-provoking distraction. You therefore may have employees ask to take vacation time off for civic engagement or to skip Election Day as a “mental health” day. How should you handle this? The quick answer is: the same way you would any other request for paid time off. If the employee is in good standing and has sufficient vacation time available, there doesn’t seem to be a legitimate reason to deny their time off request – assuming business needs can withstand their absence. Similarly, if the employee seeking a “mental health” day has sick leave in the bank and otherwise has complied with any other prerequisites described in your sick leave policy, such as notice and credible supporting documentation, denying the request could provoke a dispute.
Off Duty Conduct
No post on workplace politics would be complete without discussing what the law generally refers to as “off duty conduct.” The nutshell is that some states, including New York and California, prohibit employers from discriminating against employees based on their engagement in lawful behavior outside of working hours. “Lawful” conduct can include, among other things, political activities like supporting a candidate, engaging in lawful protest, or fundraising for a social justice cause.
Effective January 1, 2024, California raised the stakes by imposing a “rebuttable presumption” of retaliation against employers if they take adverse action against an employee within 90 days of the employee engaging in protected activity, including lawful off duty conduct. I’ll translate: not only should you not hold a California employee’s lawful off duty political engagement against them, if you happen to fire them or deny them a raise or promotion, etc. within 90 days (even if it’s completely unrelated) you will be presumed to have wrongfully retaliated against the employee unless and until you prove otherwise. All the more reason to make sure you document the legitimate reasons underlying your employment-related decisions.
The Elephant (or Donkey) in the Room
Now let’s discuss what arguably is one of the most complicated balancing acts for employers in today’s hyper-politicized age: political speech in the workplace. Treating this topic purely as a matter of law is too simplistic, although the legal framework does matter. But it’s one thing to know what the law allows and quite another to know what to do about it. A company’s stage, culture and values, and appetite to regulate employee speech all factor into the decision-matrix, resulting in no easy answers.
First, the legal stuff. The First Amendment doesn’t apply to employees of private companies (unless they’re in Connecticut) and thus employers can prohibit or control political expression at work – to a degree. Some basic parameters apply:
- Any policy barring workplace political expression should be narrowly drafted to avoid being misconstrued as chilling employee rights under the National Labor Relations Act, which protects worker discussions about employment conditions whether the workers are unionized or not.
- Any internal policy also should be politically neutral and, like all policies, applied consistently.
Applying this law in the real world is easier said than done, particularly for startups. A company’s early employees usually are composed of the founder’s friends and former colleagues – typically like-minded people who know each other and share an unspoken rapport. Formal HR policies, let alone those pertaining to internal comms, seem anachronistic. As the company hires and scales, the employee base may start to change but people are stretched and leaders have bigger priorities than worrying about policing speech, political or otherwise, and they’ll deal with any blowups on Slack or spicy All Hands questions case-by-case.
Even as a startup expands to hundreds of employees, however, it’s understandable why leaders might be resistant to defining what employees can and cannot say at work. First, no one wants to seem heavy-handed and successful startup founders are inveterate optimists: they need to have a zealot-like belief in their mission, product, and people. The impulse to try and continue to shape behavior through the company’s articulated culture and values versus formal policies therefore can be strong. But at scale it also can start to fall apart, especially if you’re late in realizing how the culture you’ve created may be sending mixed signals about politics to your employees.
Here’s what I mean: many of today’s tech companies are political creatures. Through industry trade groups or direct advocacy they actively engage in public policy debates and discuss their positions with employees. Once they reach a certain size, it also has become accepted practice for startups to sponsor employee resource groups designed to advocate internally on behalf of specific (often historically disadvantaged) employee interests. Moreover, diversity and inclusion programs elevate issues of equitable treatment and opportunity and, if they’re serious, braid them into a company’s ethos and goals. None of this is a bad thing. But it very much is political in nature and can blur the lines for employees regarding what is and is not acceptable political expression within an organization.
Bottom Line
Whether and when to adopt a policy addressing politics in the workplace is a judgment call. As a middle ground you may prefer to have a code of conduct focussed on the respectful “how” of communicating versus that “what” can be communicated. Alternatively, you may choose to define your startup’s philosophy regarding corporate political engagement and use that to frame what’s relevant or welcome for internal debate. Or you may decide that your company’s workplace culture is so disciplined that external politics or social justice issues won’t seep in. Just remember that the surest way to convey expectations to employees is to clearly state them in writing, apply them consistently, and lead by example. In the meantime, remind eligible employees to vote. 🇺🇸