Keep the Conversations Going Series
Published: December 4, 2024
By: Louise Scanes
An event sponsored by Philly SHRM on September 24, 2024, and Presented by Leanne Lane Coyle, attorney at Fisher Philips, and Nicole Giguere, Sr HRBP with over 20 years’ of HR experience. The information summarized in this article does not constitute legal advice.
But don’t I have freedom of speech?
Our presenter explains, “…this is nuanced and depends on the context and content.” Ask, “Is the affected employee in a protected class?” Does the act implicate liability to the employer? Keep in mind there is no protected class for political speech. The First Amendment only protects government action. Private employers can and should set policies to restrict speech where it can violate a law or workplace policy. This can be a policy that speaks to harassment and discrimination in the workplace.
It’s important to contextualize the issue and be specific. Any discipline for political speech at work can be a proxy for illegal discrimination and an employer needs to avoid any appearance of preferential treatment.
Title VII, ADA, and ADEA do not protect political speech. When open speech at work involves a protected class, HR should confront the issue head-on, understand what happened, and address any harassment or discrimination.
“Contextualize the issue, be consistent, and be specific.” said Coyle
An employee wears a t-shirt advocating for their political group and pro-union rights but is on a lunch break. What can HR do?
While you can try to enforce applicable dress code policies, HR must remain impartial and be wary of “concerted activity.” The National Labor Relations Board (NLRB) protects concerted activity, which is when an employee or group of employees discusses working conditions, circulates a petition for improved hours, discusses wages and benefits, and so on, and this applies even in workplaces that don’t have unions.
Employers are advised not to discipline or terminate employees for engaging in concerted activity with a few exceptions:
- the employee does something egregious, or
- knowingly circulates false or malicious information.
When and where this kind of activity occurs does matter. If the employee reveals their pro-union shirt on a lunch break, it’s riskier to pursue disciplinary action.
Can a workplace endorse a candidate?
In this presentation, Leann and Nicole explain there isn’t a law against this but consider your company culture. Do you want your leadership speaking out about political endorsements? While 64% of workers say they appreciate and feel supported when a company takes a political stance they care about, only 49% of employees think their companies should do so. In NJ it’s against the law to require employees to attend a meeting to talk about a political candidate, this is called a “captive audience meeting.” In PA this is not illegal.
About the Author
Louise Scanes brings 13 years of HR experience from a variety of industries, including education, manufacturing, and legal services. Louise holds an MS in Organization Development and Leadership from St. Joe’s University and works as an HR Business Partner at a data privacy law firm. Louise is especially interested in technology, market trends, and positive leadership in the workplace. Louise began volunteering with the Greater Valley Forge HR Association earlier in her career and now supports the Thought Leadership Team at Philly SHRM.
Editor: Dennis Paris
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