Legal Considerations for Employers during Election Years—Part III

31 August 2016 Labor & Employment Law Perspectives Blog

With the Presidential election heating up, employers may see an increasing interest in politics among their employees.  As we have covered recently in the Work Knowledge Blog, private employers are not bound by the First Amendment’s right to free speech.  But employees do have certain limited rights in the workplace relevant in election years, including the right to paid voting leave under certain state laws and the right to be free from employer threats about, or undue influence of votes for or against, a candidate or issue.  With that in mind, in this part of our election-year series, we will address the proper balance between employer and employee rights in the workplace through written employment policies.

As it relates to election-year employment law considerations, three types of policies—in addition to voting leave policies, which we covered previously—come immediately to mind: (1) codes of conduct, harassment policies, and/or policies to prevent workplace violence or bullying; (2) social media policies; and, (3) Internet usage policies.  Certainly, other policies may be applicable under some circumstances, but these are likely to be most relevant during election years.  Employers should consider reviewing and updating these policies, if they have them already, or preparing and implementing them now, if they do not.

Codes of Conduct, Harassment Policies, and/or Policies to Prevent Workplace Violence or Bullying: Americans in general take elections seriously and are often passionate about their political opinions.  While not all states make “political affiliation” a protected class, political discussions can reach issues that touch other protected classes, such as gender and race.  Compare Tex. Lab. Code § 21.051 (defining unlawful employment practices based on “race, color, disability, religion, sex, national origin, or age” but not political affiliation), with Wis. Stat. § 111.365(1) (defining employment discrimination “because of declining to attend a meeting or to participate in any communication about religious matters or political matters”).  Employers therefore should ensure that they have appropriate personnel policies in place to address inappropriate workplace behavior, harassment, discrimination, and violence or bullying.  All of these policies should provide guidance and instruction to employees on the appropriate complaint procedures if they feel threatened, harassed, or discriminated against.  See Tex. Workforce Comm’n., Harassment, available here.  And employers should offer some form of education and/or training about them.  See id.  The latter consideration is especially important for managers and supervisors.  See id.

Social Media Policies: This type of policy generally seeks to control an employee’s behavior on social media outlets, such as Facebook, Twitter, private blogs, and LinkedIn.  The Texas Workforce Commission (“TWC”) aptly recognizes that “while the technology has improved dramatically, there has been no corresponding upswing in common sense or decency in society.”  Tex. Workforce Comm’n., Social Media Issues, available here.  For that reason, employers want to prevent derogatory or inflammatory online comments linked or pertaining to the employer that could harm their business interests, which are particularly of concern during an election year.  See id.  Social media policies should generally state that:

  • Employees are prohibited from representing that the employer authorized them to speak on the social media outlet on the company’s behalf;
  • Employees may not share the company’s intellectual property or trade secrets online; and,
  • The employer’s harassment and code of conduct policies apply to the employee’s online activity as well.

While the purpose for a social media policy may be clear, employers need to be mindful that if not drafted carefully, social media policies may run afoul of the National Labor Relations Act (“NLRA”) and notions of employee privacy.  With that in mind, employers should ensure that social media policies do not interfere with an employee’s rights under the NLRA by unlawfully restricting an employee’s ability to discuss the terms and conditions of his or her employment.  And employers should also consider prohibiting managers from accessing employees’ private email and social media accounts.  See, e.g., Pure Power Boot Camp v. Warrior Fitness Boot Camp, 587 F. Supp. 2d 548, 561 (S.D.N.Y. 2008) (finding that there was “no sound basis to argue that [employee], by inadvertently leaving his Hotmail password accessible, was thereby authorizing [employer] access to all of his Hotmail e-mails . . . .”); Ehling v. Monmouth-Ocean Hosp. Serv. Corp., 961 F. Supp. 2d 659, 669 (D.N.J. 2013) (finding that the federal Stored Communications Act covers an employee’s Facebook wall posts that are configured by the employee to be private).

Internet Usage Policies: Although the federal Stored Communications Act could provide employees some protection against an employer’s perusal of their private email and social media accounts, employers have the right to monitor employees’ work emails and use of company equipment and technology.  See Tex. Workforce Comm’n., Computer, E-Mail, and Internet Policy, available here.  Internet usage policies should therefore state that employees have no reasonable expectation of privacy in their use of the company’s equipment and technology and that the employer reserves the right to monitor any such usage.  See id.  And, as with social media policies, the Internet usage policy should remind employees that they may not use company equipment and technology to harass or discriminate against other employees.  See id.

Generally, with any employment policy (including, especially, the above-referenced policies), employers should:

  • Ensure the policy is written clearly in a language the employees will understand;
  • Have employees review and acknowledge the policy, in writing; and,
  • Enforce the policy consistently with due consideration for past precedent.

Various laws at both the federal and state level may apply to employment policies, and there are certainly additional provisions that an employer may want to consider including in its employment policies.  It is therefore often advisable for employers to review, update, or prepare and implement these policies in conjunction with a knowledgeable employment law attorney.  Coordination with legal counsel is especially important if an employer wants to enforce one of the above-referenced policies in the workplace in this politically charged climate.  So contact an experienced employment law attorney if you have specific questions.

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