Election Season Requires Workplace Wisdom

David L. Barron

Texas Lawyer

10-17-2012

Another presidential election is fast approaching, and the 2012 election appears to be as contentious, if not more so, than the one in 2008. Employees may not only talk about politics around the water cooler but seek to wear buttons, circulate chain emails expressing political beliefs or outright lobby their co-workers to get out the vote for a particular candidate. These types of workplace discussions, if left unchecked, can lead to misunderstandings, hurt feelings and even litigation.

Are employees in Texas protected from retaliation based on their support of a particular candidate? The answer is yes. Texas Election Code §276.001 makes it a third-degree felony to retaliate against a voter "who has voted for or against a candidate or measure" or against a voter who has "refused to reveal how [he or she] voted." The statute specifically makes it unlawful to subject or threaten to subject a voter to a loss or a reduction of wages or another benefit of employment, which would include termination.

Notably, the retaliation protections in the Texas Election Code do not provide a private cause of action for employees who believe they have been retaliated against based on how they voted. Most recently, the Dallas' 5th Court of Appeals held in Martin v. Clinical Pathology Laboratories Inc. (2011) that a similar section of the Election Code, which makes it an offense if an employer refuses to allow time off for voting, did not create a private cause of action. The 5th Court noted that only the Texas Supreme Court can create an exception to the long-standing employment-at-will doctrine and the employee did not adequately show why the criminal penalties prescribed by the Legislature were inadequate.

Just because an employee in Texas cannot sue outright for retaliation based on how she voted does not mean that there is no legal risk of a suit. To the contrary, any time workplace discussion involves two candidates of different races or ethnicities, there is a risk of inappropriate comments as evidence of racial hostility.

Especially for management, expressing favor or disfavor of a particular candidate is fraught with danger, as subordinate employees easily could interpret such opinions as evidence that the supervisor favors or disfavors persons of a particular race or nationality on a broader basis. Managers and supervisors should be especially careful weighing in on political candidates or controversial issues that could divide the population on racial, religious or ethnic classifications that also are covered under anti-discrimination laws. For example, an employee might argue that a manager's expression of a hostile opinion on immigration reform indicates bias against Hispanics, who are a protected class under federal law.

Politics at Work

Most employees are smart enough to know that discussing hot-button issues such as religion or politics in the workplace is simply a bad idea. That said, there always are workers who want to start a debate and jump on a soapbox.

To avoid the potential legal implications and possible harm to productivity, morale and cohesiveness, attorneys should advise employers to take the following practical steps.

• Identify the company's policy on political discussion in the workplace and apply the policy consistently and fairly. Communicate the policy to employees in a common-sense, easy-to-understand fashion. Every company is going to be different: Some may host political campaign events for a particular candidate, while others prefer that political discussion be kept out of the workplace altogether.
• Remind supervisors and managers of the company's harassment policy and the need to monitor political discussions that cross the line and become disruptive or offensive. For employees of private companies, there is no "right to free speech," and employers can lawfully limit political discussions in the workplace if they deem them inappropriate.
• Respond quickly and thoroughly to any complaints of harassment.
• Consult legal counsel before taking disciplinary action against employees who make controversial comments. Some states have special protections for political speech. Also, federal law protects certain categories of speech, such as speech related to unions.

Like the electorate as a whole, most workplaces are divided when it comes to political issues. This year's presidential election, perhaps more than any other, has led to highly charged emotions. No matter what happens on Nov. 6, there will be employees who are overjoyed with the results of the election and those who are devastated. Keeping those emotions — and the accompanying antagonism that may arise between competing camps — out of the workplace is the most prudent course for all employers.

David L. Barron is a member in Cozen O'Connor's Houston office. His email address is dbarron@cozen.com.

This article originally appeared in Texas Lawyer.