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Your Next To-Do Item: Review Your Policies About Politicking

Never let it be said that LBM people lack political opinions. Thus, this fall is likely to be the high season for partisan passions. That's why owners and employees would be well-served to remind themselves of the rules on politicking in the workplace. And if your operation doesn't have rules, it's a great time to write some.

The core rules on employees stretch back to the early 20th century, when Supreme Court Justice Oliver Wendell Holmes said in essence that workers have a constitutional right to express their opinion but no right to be employed. If you work for a private company and your status is "at-will" (meaning you don't have an employment contract and can be fired at any time), your company can pretty much tell you to be quiet on the job.

For employers, the rules are much looser, in large part because of the 2010 Citizens United decision, in which the high court held that the government cannot restrict corporations from making independent expenditures in support of or opposition to candidates. The ruling also effectively enabled companies--i.e., the owners--to campaign openly for or against candidates.

In my experience, most dealers keep politics in check while they do their work; the sign Ray Gaster put up outside one of his Savannah, Ga., yards in 2012 is one of the better-known exceptions. It's likely that most dealers will want to keep a lid on political tensions as we near election day. Based on advice from law firms and trade groups nationwide, here are the key points to keep in mind.

Limits on Employees

"[E]mployers have wide latitude to limit speech that might be offensive to other employees," attorneys John F. Birmingham Jr. and Jeffrey S. Kopp wrote in an article for the National Law Review. "Even in states that protect political speech, however, the employer can discipline or discharge an employee for legitimate, business-related reasons. The key is to evaluate whether the political expression interferes with the business, disrupts others, or affects the company’s productivity."

For instance, suppose one employee walked through the office, heard a co-worker making a political comment, and then complained to management. What to do? According to a website specializing in compliance issues, "The proper response to this depends on your policies: Are you prohibiting all political discussions, or just those that become disruptive? Are employees allowed to discuss politics during work hours, or only on breaks? If the person in question is violating a documented policy, you can approach him/her about it and revisit the workplace rules.

'If your policies aren’t that strict, tell the employee who reported the problem that it’s within your staff’s rights to discuss politics, as long as it’s respectful and doesn’t cross over into discriminatory comments," the site adds. "You might encourage the employee to ask her coworker politely to take the conversation elsewhere, but you can’t discipline an employee just for holding a differing view from a colleague in an adjacent cubicle or office."

Attorneys Jim Reidy and Madeline Hutchings suggest these practices: 1) Restrict access to bulletin boards or e-mail systems for political purposes. 2) Don’t allow third-party political activity on the premises. 3) Enforce dress code and attendance policies. 4) Remind employees of policies regulating Internet and e-mail usage in the workplace.

Some employers have been tougher and still were supported in court. Reidy and Hutchings note that one Alabama factory worker was discharged after refusing to remove a candidate’s bumper sticker from her car, while a Pennsylvania waitress was let go after customers complained she was wearing a Tea Party bracelet at work.

What about coming to work wearing a MAGA hat or a button promoting Joe Biden? "Your employer can prevent you from wearing political shirts, buttons, hats, and other pieces of clothing through the use of a dress code," attorney Phillip J. Griego says. "He or she can also decide to prohibit any kind of political signage in the workplace, as long as the rules are applied equally."

You also can bar people from using company equipment, including copiers and e-mail systems, for political purposes.

The NLRA Exception

A big exception lies in the National Labor Relations Act (NLRA). Along with letting non-managerial employees wear and display labor union insignia, NLRA says employees have the right to organize as well as speak collectively about working conditions. This means there are times NLRA permits politicking, too.

"For example, an employee who compares the type of 'Me Too' sexual harassment covered in the media with his or her own work culture or who advocates for pay equity through political activity may be engaging in concerted protected activity," attorneys Stephanie C. Gaston and Anne R. Yuengert wrote in June.

William deMeza Jr. of the law firm Holland & Knight says complying with the NLRA and the discrimination laws can be tricky. "For example, an employee legally can be prohibited from displaying or distributing a 'Vote for Smith' poster or campaign button but likely could not be barred — without risking an unfair labor practice charge — from displaying posters or distributing leaflets saying 'Vote for Smith — She'll Raise the Minimum Wage' or 'Join [union name] in supporting Smith.'" deMeza wrote. "Similarly, an employee could be prohibited from wearing a "'ote 'Yes' on 5 — Raise Speed Limits' T-shirt but not one with a message 'Vote 'No' on 8 — Support Workers' Rights!'"

There also are implications when protests over political speech can tied to claims of discrimination under the Civil Rights Act, the Age Discrimination in Employment Act, and some laws involving disabilities.

Off-Duty Oversight

Suppose a worker takes part in a political rally. Can you fire that person for doing so? If it's a company rule, yes.

For instance, The Washington Post in the 1980s barred reporters from taking part in political marches, saying that being seen taking part in such a march would compromise the newspaper's independence and credibility.

Alternatively, you might permit employees to take part in a political protest when off duty, "but you can administer discipline if they call out sick to do so," Gaston and Yuengert say. "You can also prohibit protected political speech that is profane, defamatory, or malicious against the company or its managers."

Several attorneys and HR guides said a key concern here is whether the employee's activity interferes with your ability to run a business. For instance, you can curb activities that you belief could hurt the company’s reputation, disrupt the workplace, hurt employee morale, create a legal liability, or cost you business.

Again, note that some states bar discrimination based on lawful activities conducted outside of work, including political activities.

Employer Overreach?

If you own a private company, you can pretty much tell your employees what you think without running afoul of the law. And even if you don't speak out, news about your campaign donations will; ABC Supply's Diane Hendricks is one of the nation's biggest donors to Republicans and conservative causes. Still, bosses face some limits.

"Employers should be careful about trying to persuade employees to their way of thinking on political issues," the Tonkon Torp law firm warns. "Most states have laws that restrict this. For example, in Oregon, the Worker Freedom Act prohibits employers from forcing employees to attend political meetings and distribute political communications. In Washington, employers cannot interfere with an employee’s efforts to support or oppose an initiative; discriminate against employees because of their support or opposition of a candidate, party or other political activity; or use payroll contributions or salary increases for the purpose of funding political activities or candidates."

This doesn't mean some executives aren't willing to test the limits. In 2012, Westgate Resorts CEO David Siegel wrote to his 7,000 employees warning them that their jobs were at risk if then-President Obama were re-elected. The president of a Florida-based software firm made essentially the same claim that election year.

What to Do?

Here's a summary of experts' recommendations:

* Draft a policy (see one example here) that takes into account local and state as well as federal statutes.

* It's impractical and even counterproductive to impose an outright ban on political talk, so strive instead to curb rather than block discussion.

* Put your policy in writing and make every employee sign an acknowledgement that they've read it.

* Train company leaders to make sure they understand the policy and how to apply it. For instance, help them learn how to gently cool tempers when discussions get hot.

* Enforce the policy consistently across the political spectrum.

* Investigate cases carefully, stressing how the politicking was done rather than what the message was.

* Remind employees regularly that the policy exists.

* Discourage bad behavior at work, but support involvement in public life.

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