Next Tuesday, a contentious campaign season will culminate in millions of Americans making their ways to the polls and casting their ballots. Election season encompasses unique challenges for employers.
What duties do Maryland employers have to ensure their employees have an opportunity to vote on election day? And how can employers prevent politics from getting in the way of work?
Maryland Voting Leave Law
On Election Day (November 5th), employers are required to grant employees two paid hours off from work to vote if the employee does not have two continuous hours off while the polls are open during Election Day (7am to 8pm). Employers can request proof that the employee has voted or attempted to vote during the two-hour period. Md. Code Ann., Elec. Law § 10-315.
Political Speech in the Workplace
As employers are well aware, heated political rhetoric can spillover into the workplace and cause disruption. What, if anything, can employers do to prevent political discussions in the workplace? The answer begins where most legal answers do—it depends.
Private Sector Employers
Let’s begin with a common misconception with the First Amendment. The First Amendment protects individuals from the actions of the government; it does not apply to the actions of private actors. This means there are very limited situations where free speech rights apply in a private workplace.
In general, private employers can limit political discussions on the clock. However, there are exceptions where an employee’s political discourse may bleed into a different protected category of speech which private employers cannot limit.
The National Labor Relations Act (NLRA) protects the rights of employees to engage in “concerted activities” for the purpose of “mutual aid or protection,” whether or not they are represented by a union.
Concerted activities can involve political speech. The National Labor Relations Board (NLRB) ruled earlier this year that writing “BLM” (the acronym for “Black Lives Matter”) on a work uniform was protected concerted activity under the NLRA.
Employers should also remain aware of seemingly neutral political speech policies that have a disparate impact on one protected class; such policies violate Title VII.
Public Sector Employers
The First Amendment applies to public employers . . . sometimes. Public employees are entitled to First Amendment protection for their speech as a private person, but not for speech made pursuant to official public duties.
Public employees do not surrender all First Amendment protections when clocking in. But determining whether their specific speech in any given instance is protected is a multistep process with a lot of gray area.
First, the court asks if the public employee spoke as a private citizen on a “matter of public concern.” The time, place, and manner of the speech are relevant factors in determining whether the speech was made pursuant to an employee’s official duties. If speech is made pursuant to official duties, it is not entitled to First Amendment protections. However, various federal and state whistleblower protections may apply.
The term on a “matter of public concern” can loosely be defined as a subject of societal significance or importance beyond the workplace. Purely private workplace grievances are not protected by the First Amendment. If the employee did speak on a matter of public concern, the court proceeds to balance the employee’s right to free speech against the employer’s interests in an efficient, disruptive-free workplace.
The upshot is that public employers can stop disruptive political speech in the workplace. But, to prevent running afoul of an employee’s First Amendment rights, employers should be mindful to make workplace speech policies limited in scope to what is necessary to quell disruptions.
As always, if you have questions about particular workplace policies or situations, it is best to consult with an employment lawyer before making a decision.
Written by Christina Charikofsky. Christina is a legal intern at Kollman & Saucier and a third-year student at the University of Baltimore School of Law.