Close Menu

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
As Election Day 2012 nears, some general counsel are finding that trying to control heated debates and hostile campaigning behavior in the workplace can raise numerous legal issues.   And that is especially true in a presidential race that features African-American and Mormon candidates alongside hot-button issues on gay rights, women’s health, immigration, and more.   When it comes to politics in the workplace, “discrimination is the number one danger,” said Dana Howells, a senior labor and employment lawyer at Seyfarth Shaw in Los Angeles. “Politics tends to get intertwined with ethnic, racial, age, religious, and gender issues, with many differences of opinion.”   Howells said employers have to be careful not to create “an implication of discrimination” through statements made by managers and supervisors who think they are simply discussing politics.    Companies don’t want to tell employees they can’t talk about politics at all. But there are legal complications, such as “hostile environment” claims made by a person in the same category as a candidate–e.g., an employee who happens to be African-American or gay and is being maligned.   Professor Martin Malin, director of the Institute for Law and the Workplace at the Chicago-Kent College of Law, said another area of concern is employers who want to tell their employees how to vote. He cited news reports of one CEO who sent out letters to employees implying that if a particular candidate wins, the company could go out of business.   Most states have laws against intimidating voters, Malin said, “so before I sent a letter like that, I’d check first with my general counsel.”    He also pointed out that nonprofit entities, including some universities and most churches, endanger their tax-exempt status if they allow politics into the workplace.    At corporations, Malin suggested, employers should treat political debates the same as they would treat, say, a debate over the Chicago Bears versus the Green Bay Packers. “If it comes to blows or disrupts the workplace, then the employees deserve to be disciplined,” he added.   Companies can help themselves avoid legal trouble by having clear policies on what will be tolerated, said Sonya Rosenberg, an employment attorney with Neal, Gerber & Eisenberg in Chicago, agreed.    The key, she added, is well-trained managers who can act quickly. ”If employees are getting into heated exchanges that may upset a person of a certain race, gender, religion, or sexual orientation, the manager needs to recognize it and not ignore it.”   Rosenberg said the response should be “thoughtful and appropriate.”    So if two employees are discussing politics in a respectful way, Rosenberg notes, “there is nothing wrong with that. But is management getting involved, and is a manager expressing opposite political views to the employee? That could become an issue later if the employee receives an evaluation that she thinks is lower than it should be.”   Howells, in California, said controversial ballot issues, such as on immigration or gay marriage, “tend to bring out the tension and differences in the workplace.”   In fact, Howells said the first employee lawsuit in California over sexual orientation came about because of a state statute protecting employees’ political affiliations.    “A law firm told its employees not to talk to clients about their pro-gay-rights views. And one employee sued, saying the policy violated the labor code section that protects employees from coercion based on political activities.” The employee won.   Howells said compliance with state laws is another area that general counsel should watch closely during election season. Specific rights, obligations, and protections vary from state to state, she said, such as paid time off to vote.   She cited a new California law that limits an employer’s right to regulate dress in the workplace related to religion. So what if an employee wears an “Elect a Mormon for President” T-shirt or a “Mormons for Romney” campaign button?   Howells isn’t sure. “It’s a new law with no cases on the books. But I’m going to argue that a political button isn’t part of religious observance.”    And union employees are protected when they engage in union-related speech, Malin, the law professor, warned. For example, he suggested union workers could hand out leaflets favoring candidates who support the Affordable Care Act because workplace health insurance is a legitimate union concern.    “But just handing out leaflets endorsing specific candidates is a much grayer area, and it might depend on how the endorsement is worded,” he added.    Howells agreed with Rosenberg that carefully crafted company policies are key, including on politicking. She said she is seeing many challenges to personnel policies or employee handbook provisions for being overbroad.   “I’ve been practicing employment law a long time,” Howells said, “and I have never seen such an upsurge in enforcement activity directed at employer policies.”   The biggest push is on the national level, she explained, with the National Labor Relations Board invalidating employer policies that “chill” employees’ rights. One invalidated policy simply required employees to treat others with courtesy in the workplace.   But Howells said the number one phone call she gets from companies is about poster obligations. Again, different states have different requirements, such as California demanding that employers post notices about employees getting time off to vote.   “But this is an easy answer. Most poster sets that employers can buy have both the federal and state notices in them,” Howells said. ”I like when I can make it easy on a client.”    See also: “Election Season Heats Up—In the Office, Too,” CorpCounsel, October 2012.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

More From ALM

Premium Subscription

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now

Team Accounts

Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now

Bundle Subscriptions

Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now

Legalweek(year) 2021

February 02, 2021 - July 14, 2021

Legalweek(year) will bring together thousands of legal professionals for a series of 5 innovative virtual legal events.


General Counsel Conference Midwest: SuperConference 2021

July 26, 2021 - July 27, 2021
Chicago, IL

GCC Midwest addresses today's legal issues facing companies by providing general counsel with insight and best practices.


General Counsel Summit (GCS) 2021

September 07, 2021 - September 08, 2021

General Counsel Summit is the premier event for in-house counsel, hosting esteemed legal minds from all sectors of the economy.



Boston, Massachusetts, United States

NASDAQ life science technology leader seeks 8+ year attorney for broad-based senior corporate and compliance role. Responsibilities include ...

Apply Now ›


Boston, Massachusetts, United States

Prominent Boston firm seeks partners with moderate billings for a variety of practice groups. Outstanding opportunity to join a collegial fi...

Apply Now ›

Commercial Real Estate Transactional Associate

Boston, Massachusetts, United States

Large firm with Boston office seeks associate with three to seven years experience to join its real estate practice group. Qualified candid...

Apply Now ›



Please to announce...

View Announcement ›




View Announcement ›


DR Web

Notice of Re-Appointment Judge of Juvenile Court

View Announcement ›

Subscribe to Corporate Counsel

Don't miss the crucial news and insights you need to make informed legal decisions. Join Corporate Counsel now!

Unlimited access to Corporate Counsel
Access to additional free ALM publications
1 free article* across the ALM subscription network every 30 days
Exclusive discounts on ALM events and publications
Join Corporate Counsel

Already have an account? Sign In