Commentary: Aaron Tandy on Addressing Virtual Employees’ Political Posts on Social Media

By October 5, 2020February 5th, 2021In The News

It is extremely difficult to avoid political discussions or partisan political postings in today’s virtual employment world. Recent employment surveys have shown that since more companies have moved to a telework or virtual employment practice in the wake of the COVID-19 pandemic, employees admit to reading and posting more political and social activism messages during extended working hours, which has distracted from productivity.

While in other years, employers may have been able to limit in-person political discussions from disrupting the workplace, and required employees in most cases to confine their political activity to off-the-clock hours, with more companies utilizing internet platforms to conduct business meetings and the “work day” shifting in time and place, political “conflicts” within the new workplace environment are more apt to occur and with greater frequency. As such, it is important that private employers establish clear policies, to avoid social media postings from interfering with work productivity and employee teamwork and collaboration.

While certain states specifically prohibit employers from retaliating against employees for expressing their social activism or support for particular candidates, and other states have statutes in place providing guidance for workspace political discussions, Florida has no state laws addressing the issue with respect to private workplaces. Contrary to federal and state laws that allow public sector employees to express their political opinions or affiliations without concern for retaliation or reprisal, and federal laws that protect all employees’ rights to discuss labor-related topics, Florida has no such state laws specifically protecting private employees from the consequence of political speech, although some counties do have anti-retaliation ordinances that protect employees from being discriminated for expressing a political affiliation or position.

Therefore, In general, Florida employers can restrict or ban political signs, banners, campaign buttons and shirts containing political messages except for those discussing union, wage or workplace conditions. For example, a generic “Vote for Candidate” button could be banned, but “Vote for the person that will ensure safe working conditions” may not so long as it does not disrupt work performance. But in a Zoom conference world, an employee wearing a particular shirt or sitting by a particular slogan during a meeting could have political implications, or sharing a particular story or cartoon can spark an employment issue requiring human resource intervention to prevent an issue of discrimination, harassment or retaliation.

In a virtual world, it is nearly impossible to ban all discussions or symbols that can conceivably relate to politics or convey a political position. While employers may impose limits on the type of subjects discussed and ban the use of company resources such as computers, telephones, equipment, supplies, etc. in an effort to promote a particular political message, in an age of increased workplace activity being undertaken over the internet in tandem with the use of remote platforms, with employees friending each other, sharing or commenting on postings, conditions for vitriolic political based “discussions” between co-workers are more likely to occur, requiring employer intervention and application of a specifically designed policy.

For this reason, major companies such as Google have established policies, in Google’s case Community Guidelines, to “support the healthy and open discussion” of nonwork topics. Many of these policies (unlike traditional in-person workspace policies which banned political clothing or campaign material), are designed not to prevent speech but lower tensions by requiring civility and avoidance of personal attacks. Google’s Community Guidelines require employees when communicating to be responsible, productive and thoughtful, and to avoid attributing positions to the company that do not reflect Google’s positions or public statements, and to avoid postings that “insult, demean, or humiliate (whether individually or by reference to groups) other employees, our extended workforce, our business partners, … or that violated other standards of conduct or policies against harassment or bullying.”

Especially during a heated election season, employers are better served by creating a set of written guidelines that identify the limitations imposed on employee activity and speech during working hours rather than relying on generic civility or anti-harassment policies. Such a written policy should identify that in all instances the tone of any discussion must be civil and avoid interruption of or distraction from work related tasks, avoid misrepresenting the company’s own position or inappropriately attributing a political position to the company or colleagues. In the end, companies should emphasize that the focus of the workplace is to work in an atmosphere that encourages mutual respect and minimizes disruptions that distract from completing projects, that includes distribution of statements of support, political messages or political cartoons which are an attempt to coerce co-workers into supporting a particular candidate for office.

Aaron Tandy heads Pathman Lewis’ employment law practice. Contact him at atandy@pathmanlewis.com.