ILMA Compoundings April 2017 - 40

COUNSEL COMPOUND

Employees' Outside
Political Activities and
the Workplace
I
By Jeff Leiter

LMA members tell me about "tension" lingering in their workplaces
well past November's elections and
January's inauguration of President
Trump. In today's political and cultural climate, I expect these tensions to
remain high.
More than one ILMA member has
talked with me about their ability
either to discipline workers or to create
a policy for employees whose off-duty
political conduct or advocacy bleeds
into work. In one conversation, I was
asked how to control an employee's
tweets when Trump is a daily Twitter
user. My smart aleck response was,
"One is president of the United States."
Unfortunately, there is no simple
answer. As frustrating as an employee's
political conduct or opinions might be
- either in opposition to or in support
of the Trump administration, or some
other cause - my "bottom line" is to
proceed with caution before firing or
disciplining an employee at work for
his or her lawful off-duty activities.
Let me walk you through my analysis, from disciplining the employee up
to termination. There are variables to
consider, including the state you are
operating in, the nature of the business
and the individual. For example, most
states prohibit employers from taking
adverse action against employees because of legal, off-the-clock activities,
such as the use of tobacco products.

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APRIL 2017

| COMPOUNDINGS | ILMA.ORG

The safest bet from my perspective is to
base and document any employee termination or discipline on an objective assessment of
both the employee's actual job performance and
the company's business needs."

Drilling down even further, a number of states prohibit employers from
taking adverse action against employees because of their off-duty, lawful
political activities. Laws in California,
Colorado, Louisiana, New York, South
Carolina and Utah generally say that
employers may not coerce employees,
discriminate or retaliate against them,
or take any adverse employment action
because the employees have engaged
in political activity. Some of these state
laws, however, make exceptions in cases
where the employee's off-duty political
activity creates a material conflict with
the employer's business interests. Thus,
absent an exception, these state laws

make it unlawful for an employer to
terminate or demote an employee because of his or her lawful, off-the-clock
political activity.
Turning to a workplace policy, at
least three states (California, Louisiana and Colorado) make it unlawful
for an employer to adopt a policy or
workplace rule that forbids or prevents
employees from engaging or participating in political activities or from
running for elected office.
Federal law, specifically the National Labor Relations Act (NLRA),
comes into play along with the state
law determinations. Section 7 of the
NLRA guarantees employees "the
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