Political Activities in the Workplace: Employer Policies ...media.straffordpub.com/.../presentation.pdf · 8/14/2019 · Political Activities in the Workplace: Employer Policies,

Political Activities in the Workplace:

Employer Policies, Employee ComplaintsRequiring Donations, Restricting Speech, and Other Campaigning and Fundraising Issues

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WEDNESDAY, AUGUST 14, 2019

Presenting a live 90-minute webinar with interactive Q&A

Jerald J. Oppel, Senior Counsel, Baker Donelson Bearman Caldwell & Berkowitz, Baltimore

J. Thomas Spiggle, Owner, The Spiggle Law Firm, Arlington, Va.

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www.bakerdonelson.com

Jerald J. Oppel

Senior Counsel

Baltimore

410.862.1138

[email protected]

Political Activities in the Workplace: Employer Policies, Employee Complaints

6www.bakerdonelson.com© 2019 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC

Today’s Political Environment

“about a quarter of American workers have been contacted about politics by their bosses or supervisors — and that nearly two-thirds of those contacted have gotten some form of political pressure. For some, this pressure came from a message they disagreed with or that made them uncomfortable. For others, potential consequences to the company's business due to politics — like plant closings, layoffs, or reduced hours — were mentioned.”

Alexander Hertel-Fernandez, SSRS Survey, Employer Mobilization Project at Harvard Universityhttps://www.vox.com/2015/5/5/8555141/employers-politics-hertel-fernandez


Reported Examples of Employer Actions Include:

[Company Name] says employees who donate at least 2.5 percent of their salary to the company PAC get choice parking spots in the company lot.


Reported Examples of Employer Actions Include: (continued)

[Another Company] gives employees who donate to the company PAC a two-for-one match to [its] in-house charity for associates in need.


Reported Examples of Employer Actions Include: (continued)

[Third Company] sent its employees a voter packet informing them which candidates…the company supported, as well as an editorial knocking [the other candidates].


Sources of Governing Law

• Common law employment law

• First Amendment

• National Labor Relations Act

• Title VII Employment Discrimination

• State statutory schemes, including “right to vote”


Common Law

• Absent an employment agreement to the contrary, employers can discipline and/or terminate an employee for any legitimate business reason.

• The employer can claim that the employee's political expression is disruptive and harmful to morale and business operations.


First Amendment

• A private workplace is not subject to First Amendment concerns.

• Public employers are subject to First Amendment concerns.


National Labor Relations Act

• The NLRA, which applies to private unionized and non-unionized workplaces, protects non-supervisory employees’ discussions about terms and conditions of employment. As such, employers may not prohibit all political discussion in the workplace because some political speech could intersect with work-related matters (e.g., immigration reform, equal pay, or the minimum wage) and therefore may be protected.


National Labor Relations Act (continued)

• Campaigning (soliciting and distributing literature) by employees in the workplace can be prohibited or controlled, provided the employer prohibits solicitation and distribution of literature on working time and in working areas for all non-business reasons.


National Labor Relations Act (continued)

• Employers should treat political distribution just as they treat other types of solicitation and distribution. Just as employers have no solicitation/no distribution in the workplace rules for categories other than political campaigning and expression, such as union avoidance and religious proselytization, employers should review their company's no solicitation/no distribution rules and promulgate such rules before the need arises.


Title VII Concerns

• Laws which protect employees, but because of other federal and state anti-discrimination statutes which prevent discrimination or harassment on account of various protected classifications such as race, gender, religion or sexual orientation, not only where there is direct harassment or discrimination, but where there is disparate and inconsistent application of the employer's work rules or policies.


Title VII Concerns

• Consider when the company:

− Only stops employees of a protected class from engaging in political activity.

− Only stops activity which supports candidates who belong to a protected class.


State Law: Time to Vote, Notice to Employer and Paid Time Off

Many states (or cities) require employers to provide employees sufficient time to vote. This varies from jurisdiction to jurisdiction regarding existence of the requirement, permitted length of time, and compensation for the time.


Employer Conduct in Various StatesState Law: Alabama

An employer cannot coerce an employee to vote a particular way in an election, and may not seek to examine an employee's ballot. That statute contains examples of prohibited conduct, such as threatening to discharge an employee or reducing the employee's pay, job schedule or compensation.


State Law: District of Columbia

Employers cannot discriminate against employees based on the employees' affiliation with or support for a political party, and the law allows a private cause of action on the part of an employee.


State Law: Florida

Employers cannot terminate or threaten to terminate an employee for voting activities relating to local elections. Also prohibited is any employer action which would hinder an employee's registration to vote or other voting activity.


State Law: Georgia

It is against the law to coerce an employee with respect to a recall election or to intimidate employee voters through acts which would cause fear for his or her safety.


State Law: Louisiana

It is unlawful to intimidate an employee with respect to his or her political affiliations. An employer may not allow an employee's political contributions to affect that employee's compensation or employment. Further, employers with more than 20 employees cannot prevent its employees from engaging in politics or becoming a candidate or control employees' political activities or threaten to discharge an employee because he or she supports a political organization or candidate.


State Law: Maryland

It is forbidden to influence an individual's voting activity through intimidation. Employers may not include in "compensation materials" (i.e., pay envelope, any statement which is intended to influence the political opinions or actions of the employees). Further, it may not display any notice within 90 days of the election that uses threats to influence employees to support or not support a particular candidate, including threats to close the business or reduce compensation should a particular candidate be elected.


State Law: Mississippi

An employer may not interfere with the political rights of an employee, and the law allows employees a private right of action.


State Law: North Carolina

An employer may not directly or indirectly terminate or threaten to terminate the employment of any individual because of that employee's voting activities.


State Law: South Carolina

Prohibits intimidation of an individual because of political opinions or activities. It also prohibits an employer from discharging employees based upon their political opinions or activities.


State Law: Tennessee

Employers cannot coerce employees to vote for a particular candidate or in any particular way, nor may they discharge employees for failing to vote for a candidate or in a certain way or display or otherwise distribute any statement intended to coerce employees to vote for any candidate or in a certain way.


State Law: Texas

It is illegal for an employer to retaliate against an employee for voting a certain way by reducing or threatening to reduce that employee's compensation or benefits.


State Law: Virginia

Political action committees cannot use funds obtained through actual or implied threat of physical force, job discrimination or financial reprisal. Threats or bribery to influence an employee's vote is prohibited.


Hypothetical Scenario One

"My supervisor is giving me the silent treatment and assigning me and a co-worker all of the dirty work because we asked for the afternoon off to attend a rally for a politician who is advocating for a large increase in the minimum wage and certain wage and hour protections."


Scenario One Analysis

• Political activity related to the workplace (i.e., the employees have asked for time off to attend a political rally of a candidate seeking to increase the minimum wage and provide increased overtime payments).

• NLRB could contend that prohibiting the employees from attending such a rally and/or soliciting and distributing literature related to that rally would be considered a violation of Section 7 of the NLRA (i.e., "protected concerted activity," and the NLRB could require the employer to reverse its decision to discipline or terminate the employee and pay back wages if the employee was terminated).


Hypothetical Scenario Two

"My supervisor won't stop my fellow employees from harassing me because of my religion and national origin. Several political figures have come to this state and are speaking about closing the borders and deporting people of my religion and national origin. I have been receiving a lot of harsh words from my co-employees.”


Scenario Two Analysis

• The real complaint is of discrimination on the basis of his religion and national origin, because certain employees in the workplace are discriminating against or harassing minority employees because of political candidates' expression of dislike or contempt for such minorities.

• If an employee were to go to the Equal Employment Opportunity Commission or a state or local anti-discrimination agency and allege discrimination because he or she is one of the oft disparaged minorities, and if the EEOC determines that the employer does not allow such conduct with regard to other majority and non-minority employees, the agency could find disparate treatment, and the employer could be held liable for damages, attorneys' fees and obligation to rehire the discriminated against employee if he were terminated (and provide him back pay).


Hypothetical Scenario Three

"My supervisor, who is very pro-life, found out that I went to a political rally for a pro-choice candidate. He affronts me privately and in front of other employees trying to convince me of the correctness of his position. It just keeps getting worse. Now he calls me 'baby killer,' and I am afraid for my job.”


Scenario Three Analysis

• A pro-life supervisor is belittling and harassing the pro-choice employee because of his support for a pro-choice candidate.

• The employee in this example is really being called out by his supervisor because the employee and the supervisor differ on the question of abortion, and this confrontation can extend into the area of discrimination on account of religious beliefs.

• An additional complicating factor in all three of the examples above could be where a union or union organizer is added into this mix.


Questions?

www.bakerdonelson.com

Jerald J. Oppel

Senior Counsel

Baltimore

410.862.1138

[email protected]

Political Activities in the Workplace: Employer Policies, Employee Complaints


Jerald J. OppelMr. Oppel is noted for a career of vigorously defending corporations and nonprofitsin litigation and claims brought by employees, unions and federal, state and localadministrative agencies. He counsels clients on actions designed to mitigate orprevent labor-related litigation. His advice is used to develop personnel procedures,employee handbooks and grievance mechanisms. He also helps clients with regardto union avoidance and decertification.

40www.bakerdonelson.com© 2019 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC | Confidential

Labor & Employment Practice

We’re the Resource in Human Resources.

Our labor and employment attorneys offer litigation defense services for administrative and court proceedings at the federal and state level, advice on pre-litigation strategies to reduce legal risks, policy analysis and drafting, compliance audits, management training and labor negotiation.

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Our attorneys stay on top of the latest changes in laws and regulations from A to Z. We provide counseling and strategic advice on all employment-related laws and regulations, and when necessary, we defend our clients in district and federal courts across the country. Attorneys regularly appear before the EEOC, DOL and Occupational Health and Safety boards.

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We work with clients across all types of businesses and industries, and we take pride in understanding exactly how they work and how our clients are positioned in the marketplace. These include local, regional and global companies in the health care, energy, food processing, entertainment, insurance, chemical manufacturing, construction, transportation and distribution industries.

Your Rights in the WorkplaceFREE SPEECH

• Represents clients across five states and covers a variety of practice areas in employment law

• Since opening in 2009, we have negotiated millions in settlements and become a trusted and respected advocate for those facing discrimination, retaliation, and harassment in the workplace.

THE SPIGGLE LAW FIRM

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WHAT DOES THE FIRST AMENDMENT GUARANTEE?

• Government vs. private employees

• Concerted activity

• Restriction can’t only affect a certain class of people

• State law can affect this

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NATIONAL LABOR RELATIONS ACT

• The NLRA creates rights for employees, including the rights to form, decertify, help a labor organization, and join together to bargain collectively through representatives of their choosing.

• Employees can work together (“concerted activity”) to improve their terms and conditions without a union getting involved.

• This includes discussing wages, benefits, better hours, refusal of unsafe working conditions, etc.

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STATE LAWS

• In California, employers cannot discriminate against employees based on their political activities or affiliation.

• In Colorado, employers can’t have rules that may prevent an employee from engaging in political activities.

• In Washington, D.C., political affiliation is a protected class.

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FEDERAL SECTOR EMPLOYEES

• Free speech protections

• Due process rights through the MSPB

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• After the photo released, her employer terminated her

• She sued for wrongful termination, arguing free speech

• The judge dismissed the case, because her employment was at-will

FIRED FOR ‘FLIPPING OFF’ THE PRESIDENT

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POLITICAL ACTIVITIES

• Some state laws have protections

• Some protests and demonstrations are protected

• Title VII of the Civil Rights Act of 1964

• Employers can have their own political views

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• Present at the Charlottesville riot

• Involved with Rise Above Movement, an anti-Semitic group

• Fired by an East Bay hot dog chain

COLE EVAN WHITE

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IS HATE SPEECH PROTECTED?

• First Amendment protection

• Private vs. federal

• Be careful with social media

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• Kathy Zhu posted on her personal Twitter offensive comments about Muslims and African Americans

• The Miss World America Organization ousted Ms. Zhu, calling the tweets “offensive” and “inappropriate.”

MISS MICHIGAN OUSTED FOR TWEETING

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SOCIAL MEDIA TIPS

• Avoid anything controversial or objectionable

• Avoid anything work-related or critical of your workplace

• Post anonymously (though there isn’t a guarantee)

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• An overview of federal laws including the Family and Medical Leave Act, Americans with Disabilities Act, Title VII and others

• What discrimination looks like and how to file a charge with the Equal Employment Opportunity Commission

• Valuable advice from years of employment law experience

YOU’RE PREGNANT, YOU’RE FIRED

53

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Political Activities in the Workplace: Employer Policies ...media.straffordpub.com/.../presentation.pdf · 8/14/2019 · Political Activities in the Workplace: Employer Policies,