Dealing with Political Elections in the Workplace: Paid Time Off, But No Free Speech

As the U.S. Presidential election nears, here’s a quick reminder of how political elections intersect with the workplace.

Time to Vote

Under New York State Election Law Section 3-110, employers need to know that:

  • If employees do not have sufficient time outside of their working hours to vote they may take off up to 2 hours at the beginning or end of their shift, with pay, to allow them time to vote.
  • Sufficient time” is defined as: Four consecutive hours either between the opening of the pols and the beginning of their working shift, OR between the end of their working shift and the closing of the polls.
  • Employees must notify their employer no more than 10 or not less than 2 days before the day of the election that they will take that time.

So there you have it.  Not many know of this law, but it exists and is a protection aimed at affording employees the ability to exercise their greatest civic duty, voting.   Personally, I think it would be better if either the election was moved to the weekend, or Election Day was made a national holiday.  While other holidays typically celebrate historical events, Election Day as a holiday would celebrate not only our right to vote, but it would also celebrate the greatest democracy the world has ever known at the same time that we simultaneously show the beauty of it in action!  But I digress.  The important thing is, get out there and vote!

Political Speeches & Activity at Work

Employers

There has been some good blogging about the effect the Supreme Court’s Citizens United decision is having on US political life in the workplace.   See here: http://yalelawjournal.org/the-yale-law-journal-pocket-part/volume-120/addressing-political-captive-audience-workplace-meetings-in-the-post%11citizens-united-environment/  In short, it is now lawful for employers to require employees to attend meetings where the employer tells employees why voting for a certain candidate is in their, and the company’s, interest.  These are known as “captive audience” meetings in the labor law world because the employee is essentially held captive and forced to listen to messages from the employer that they may not agree with.  This is something new in America when it comes to politics in the workplace and may seem counter-intuitive. Most employment laws take into account the inherent imbalance of power between employers and employees, and the potential for undue influence being exerted by employers over employees.  Similarly, it is sacrosanct that each citizen must be permitted to vote their conscience free from undue influences.  It is the basis for the secret ballot.  Thus, employees may be taken aback by the recent change in law permitting political captive audience speeches at work. However, it is important for employees and employers to know that, from a legal standpoint, it is now completely legal.

It is still unlawful to threaten employees if they vote the “wrong way,” but employers are not required to give employees or opposing candidates equal time in response to an employer captive audience speech.

Having said that, I think that from a morale standpoint it is probably not a good idea to force employees to attend political meetings in the workplace.  Nothing divides and causes tension and conflict between otherwise amicable people the way that politics (and religion) does.  Additionally, politics often has significant overlap with social issues that may invoke certain protected classifications covered by state and federal employment laws, such as religion, gender, race, nationality, or disabilities.  Crossing the line may create a hostile work environment.  In addition, there may be overlap with the NLRA which prohibits employers from restricting employees from discussing terms and conditions of employment.  Thus, ramming politics into the workplace can only cause problems, and problems in the workplace can disrupt work and hit the bottom line.  Indeed, most HR consultants typically advise employees against talking about politics in the workplace for this very reason, as seen here: http://www.forbes.com/sites/jacquelynsmith/2012/10/17/should-you-discuss-the-presidential-debates-at-work/

In addition, in places like New York that have laws that protect employees from employer conduct that targets employees based on their lawful off duty activities, including political activities, employers that push employees on political issues run the risk of creating a cause of action where it disciplines an employee that refuses to attend a captive audience meeting or is disruptive in it, but the workplace political activity of the employer so permeates the employment relationship that the line between on duty and off duty political conduct gets blurred.

Employees

Employers that do not want political speech or conduct to disrupt the workplace may prohibit such speech or conduct in the workplace, but may not prohibit union speech/activity that occurs off work time in non-work areas since that would violate the National Labor Relations Act.    What about “free speech?” you may ask, but free speech only applies to government employees in certain circumstances or those who encounter the government.  It does not apply to private employment.   So instead of “free speech” private employees often find that their political speech can be costly, as in costing them their jobs.  As such, it is probably best for employees to avoid talking politics at work.  This is especially so if the employer takes a strong opposing political view.   Like discussing religion, it is probably best to restrict such speech to one’s personal time.

Conclusion

In summary, employees may have the right to take some paid time off to go and vote.  They need to coordinate with management in advance to determine whether they are entitled to it.  We should all vote, and we should all refrain from poisoning the workplace with politics.  The election will be over before you know it, and we can then all get back to work!

DISCLAIMER: This site and any information contained herein, including this entry, are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

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