Managing Politics in Workplace: Legal Insights & Employer Guidelines

1. POLITICS IN THE WORKPLACE Cynthia W. Kolb Cross, Gunter, Witherspoon & Galchus, P.C. 500 President Clinton Avenue, Suite 200 Little Rock, AR 72201 501-371-9999 ckolb@cgwg.com http://www.cgwg.com

2. An Overview for Employers • “Free Speech” • NLRA • Policies Employers Should Have • Time off to Vote

3. “Free Speech” First Amendment limits only the government’s ability to suppress speech. 14th Amendment extended this to state and local governments. Does not apply to private-sector employers Generally free to terminate or discipline employee for their speech as long as do not discriminate

4. “Free Speech” There are limits to free speech even for public sector employees 1st Amendment only protects speech involving matters of public concern that outweighs the government's interest in having an efficient workplace: yes: allocation of school funds; performance of police on a particular occasion; environmental violations at a water treatment plant no: grievance about internal office policy Have to be on own time; acting as private citizen, not just doing their job

5. Public Sector Employees • Other protections may be available, such as whistleblower statute • Hatch Act limits political activity of federal employees- purpose is to maintain a federal workforce that is free from partisan political influence or coercion • May not engage in political activity while on duty

6. National Labor Relations Act • The NLRA allows protected, concerted activity by non-supervisory employees • Section 7 of the Act provides that union and non-union employees have the right to engage in activities that are both “protected” and “concerted.” • An act is protected if it is undertaken for purpose of collective bargaining or mutual aid or protection. • Concerted is when an employee acts with another or on behalf of another employee. • Terms and conditions of employment: Section 7 of the NLRA gives employees the right to discuss wages, hours, working conditions, and organizing a union

7. National Labor Relations Act • Disciplinary Actions for Employees And the NLRA • The Act does not prohibit employees’ termination/discipline for “acts of disloyalty” criticizing an employer’s products. • Issues generally revolve around actions taken or policies that restrain an employee’s ability to engage in Section 7 rights. • . . . however, NLRA prohibits disciplinary action for “concerted protected activity” – Even on social media • Criticism of terms/conditions of employment, including management personnel, is being interpreted as “protected activity” by the NLRB. • But, NLRA does NOT protect purely political speech

8. Personnel Policies • Should you ban all political discussion? – Probably not realistic; can train your supervisors to avoid it. • Likely have policies in place that can be used to address these situations: • Dress Code Policy • Social Media Policy • Anti-Discrimination Policy • Anti-Harassment Policy • Non-Solicitation Policy

9. Voting • Arkansas Code Annotated 7-1-102 Each employer in the state shall schedule the work hours of employees on election days so that each employee will have an opportunity to exercise the right of franchise. Any employer who fails or refuses to comply with the provisions of this section shall upon conviction be subject to a fine of not less than twenty-five dollars ($25.00) nor more than two hundred fifty dollars ($250). • Requires employers to schedule work hours on election day so that employees will have time to vote • Can be before or after work • Unpaid; Although employer’s policy may allow for paid time off to vote

10. Questions?