Law: In campaign season, work time is for work

The 2012 general election is rapidly approaching, and discussion of political issues is beginning to intensify. Issues such as health care reform and same-sex marriage create additional fuel for debate this year in Iowa.

As any workplace is a community in which its members hold a variety of political views, free speech and tolerance certainly will be tested.

Accordingly, many employers are reexamining their rights and policies regarding political activities in the workplace. As a private employer in Iowa, what can you do regarding such political discussion and expression in the work force?

The answer, frankly, is as much or as little as you want.

Many people incorrectly believe that the First Amendment guarantee of free speech makes it unlawful for a private employer to discipline or fire them for political expression in the workplace. However, the First Amendment only applies to “state action,” not to private employment.

Thus, unless the conduct at issue ties to a federal statute prohibiting discrimination on other grounds - religion under Title VII of the Civil Rights Act or union activity under the National Labor Relations Act, for example - there is no federal protection for engaging in political activities at a private workplace.

Some employers choose not to do anything. One newspaper columnist discussed an employer whose employee had an anti George W. Bush bumper sticker on her car, but did not ask her to remove it.

“You have a right to believe what you believe,” he said. “The most unAmerican thing you can do is stay on the sidelines. I'd rather you be in the game, even if you don't agree with me.”

Political expression, of course, is different from political belief. If you employ any politicians, remember that Iowa law requires an Iowa employer to grant an unpaid leave of absence to any candidate elected to office without loss of service and benefits.

However, while employers may not want to control their employees' political opinions and affiliations, and must accommodate any elected officials, most want their employees to focus on their jobs - and permit their colleagues to do the same - during work hours.

You are in luck. Simply stated: Courts have found over and over again that work time is for work.

Courts recognize that employers have a legitimate interest in preventing any nonwork activity - be it political discussion or conversation about a less controversial topic - from disrupting their business' efficient operation.

Political expression at work can interfere with not only the work of the employee engaged in the activity, it also can adversely affect other employees who hold differing points of view. Employees may feel harassed by fervent advocates of one candidate or another.

Accordingly, if political discussion impairs productivity - either the productivity of the speaker or of the person to whom the political speech is addressed - management can and should intervene.

To avoid any misunderstandings, an employer may want to consider the following workplace rules:

•  Prohibit various activities, such as political campaigning during business hours.
•  Enforce general, consistent rules about employees' personal appearance or work-area decor - making sure all employees are treated equally. For example, retail workers who come into contact with customers can be prohibited from wearing political campaign T-shirts or buttons.
•  Adopt and enforce no-solicitation/no-distribution rules that limit soliciting support for and distributing literature about various types of non-work activities, ensuring that they are applied to political campaigning.

The rules should be applied in an evenhanded way, but not be so overbroad as to prohibit protected activities, such as the right of workers to discuss union-related issues on nonwork time in nonwork areas.

• Adopt and enforce policies dealing with workplace technology, including the restriction of email to work-related activities.
•  Prohibit employees from posting any written or printed materials in the workplace, including materials of a political nature. Employers generally enforce such posting rules primarily in those jobs that have regular customer contact.

But be consistent - don't refuse to permit a posting concerning a particular issue or point of view. Instead, exclude all political postings.

Iowa employers are allowed to adopt these practices in the interest of their company's legitimate business interests and to keep employees concentrating on their work, not their politics.