Election Season Considerations

2020 is the year that everything that could possibly happen…happened.  It seems only normal, then, that 2020 is also the year of a U.S. Presidential election.  No matter where you stand as an HR professional on the political spectrum, you must navigate the election season in the workplace.  With that in mind, let’s discuss just a few things to keep in mind.

First and foremost, unless you are a governmental employee, you absolutely have the right as an employer to prohibit political discussions in the workplace.  The First Amendment right to freedom of speech does not apply to non-governmental actors.  The only thing you must keep in mind, though, is that if the political discussions in the workplace center around unions and/or your workplace conditions, you want to be very careful that you do not cross the line into prohibiting discussions that constitute protected concerted activity under the National Labor Relations Act.  What this means, though, is that if you want to prohibit those Biden-Harris t-shirts and those Trump-Pence buttons, you absolutely have that right.

This is even more true because political affiliation is not a protected category under federal or Texas law.  That means that if you as an employer identify as a Democrat and there is a Republican-identifying employee, the employee does not have any per se Title VII (federal anti-discrimination law) or Chapter 21 (Texas anti-discrimination law) protections.

However, you want to make sure that you are applying your policies and enforcing your policies in a consistent manner.  While this may not seem like something you would need to consider in this instance, what if all of your female employees support one candidate and all of your male employees support another?  If you’re allowing one candidate’s paraphernalia over another, it could start to move toward discrimination and/or harassment based upon a protected category.

What about your employees’ social media commentary regarding the election?  Again, because political affiliation and politics are not protected categories, as long as you are not inhibiting protected concerted activity, you have the right to restrict or minimize or take action upon that social media commentary.  Again, though, be careful about taking your action in a consistent manner.  Also be aware that you might have a duty to take action if one of your employees is engaged in commentary that could be considered racist or sexist (or otherwise implicating a protected category) if such commentary is visible to or known to the employee’s co-workers.  Social media certainly can be a minefield when it comes to this area and it is important to know what actions you should be taking and what actions you must be taking.

Finally, under Texas law there are a few legal requirements about which you must be aware.  First, understand that you are not permitted to take adverse action against employees based on (a) absence to vote, (b) how the employee voted, or (c) the employee’s refusal to reveal how he or she voted.  All such actions are violations of Texas law.  In addition, Texas employers are prohibited from retaliating against employees for attending a political convention.  Finally, unless the polls are open for two consecutive hours outside an employee’s working hours, an employer must allow an employee up to two hours of paid leave within which to vote.

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