A special thanks to Adam Bennett for his assistance with this article.
Election Day is quickly approaching. Rejoice! There really is a light at the end of the tunnel when the endless stream of attack ads will cease to exist. But before the last ballot is cast, the last precinct closes and the final votes are tallied, employers are sure to have plenty of questions about how to address employees’ political expression in the workplace without violating the law or making any employee feel alienated. To avoid being left with post-election blues, Ohio employers are wise to consider how they might comply with federal laws regulating political expression in the workplace and Ohio laws regarding voting leave.
Federal law: The National Labor Relations Act
Section 7 of the National Labor Relations Act (NLRA), applicable to unionized and non-unionized workplaces, prohibits employer “interference” with the rights of non-supervisory employees to discuss terms and conditions of employment, or generally, to engage in, or refrain from engaging in, union organizing activity. The National Labor Relations Board, tasked with the responsibility to enforce the NLRA, takes the position that nearly any limit on workplace discussion that could have a “chilling effect” on employees’ Section 7 rights normally violates the law.
Employers should be careful to avoid regulating employee political speech in a way that has a “chilling effect” on the workplace. Under the NLRA, employee speech is protected when it pertains to the terms and conditions of employment. For instance, when employees talk about how electing Candidate A or Candidate B could impact their employment status, their speech is likely protected under the NLRA. Similarly, directing employees to be “courteous” or “civil” in how they discuss politics in the workplace creates the risk of a “chilling effect” on political speech, resulting in a violation of the NLRA. Obviously, all of this also means that employers should avoid total bans on employee political speech in the workplace, as blanket bans are likely to violate the NLRA.
Employers would be wise to remind employees of internet, social media and email policies. Similarly, employers should remind their employees of any of their companies’ anti-harassment policies based on race, sex, national origin, age, religion or other protected category. For example, discussions about how Trump is great because he is going to ban all people of a certain religion from the country could be considered religious harassment. Similarly, saying that Hillary Clinton is unqualified because of her gender could be considered sex discrimination.
It is best to remind employees to “self-police.” Encourage them to leave and de-escalate the discussion when political conversation gets too heated, or to warn their fellow co-workers when they fear that conversations are getting too hostile. In this way, employers can avoid workplace conflict and also avoid violating the NLRA.
Ohio voting leave: What voting leave is an employer required to provide?
Ohio Revised Code § 3599.06 provides that employers must give their employees a “reasonable time to vote.” Further, employers are prohibited from discharging or threatening to discharge employees when those employees take a “reasonable amount of time to vote.” The law does not spell out what a “reasonable time” to vote is, nor does it define what restrictions or parameters an employer can place on voting leave. To play it safe, employers should provide employees leave to vote even when employees are able to vote during non-working hours.
What is an employer prohibited from doing?
In addition to prohibiting employers from discharging or threatening employees who use a “reasonable amount of time to vote,” the law also prohibits employers from:
- Requiring an employee to accompany them to a voting place
- Refusing to permit an employee to serve as an election official on any registration or election day
- Indirectly using any force, restraint, threats, or intimidation to induce or compel a person to vote—or refrain from voting—for or against any person, question, or issue
As a best practice, it is wise to realize that one’s vote is a personal choice, and let employees decide for whom and what they want to cast their ballot.
Does an employer have to pay an employee for time spent voting?
The statute does not indicate whether an employer is required to pay the employee for voting leave. The Ohio Attorney Generally has interpreted Ohio Revised Code § 3599.06 to require employers to pay only exempt employees for voting leave, which is consistent with the requirements of the federal Fair Labor Standards Act (FLSA). Employers, however, do not have to pay hourly, commissioned, or piecework employees for voting leave.
What is the penalty for violating the law?
Employers who violate O.R.C. § 3599.06 face a $50-$500 fine. Employers may also find themselves facing a wrongful discharge case if they terminate an employee for an absence or conduct related to voting leave. Thus, to be on the safe side, it is advisable that employers provide employees leave to vote. However, employers may want to establish policies requiring advance notice for voting leave or designating certain hours during each shift for voting leave. Neither of these restrictions are prohibited by the Ohio statute, and both are relatively easy policies to incorporate into the workplace.