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With the consequential US election approaching in less than a month, which determines political control of Congress and the White House, political discourse in the workplace is on the rise. Millions of voters, especially those in the seven so-called “swing states,” are saturated with political advertising on their televisions, phones and computers.
While US laws do not prevent employers from controlling the type of speech allowed in their workplaces, the issue is particularly complex because some states have specific laws protecting political speech in the workplace. Meanwhile, federal laws generally seek to protect certain types of workplace activities, such as the right to assemble or organize a union or other type of employee group.
All of this means that countless companies, and their human resources and in-house legal counsel, find themselves grappling with the potential for political discourse to mutate in ways that could create legal problems.
Kacey Riccomini
Permission granted by Thompson Coburn
To explore some of these issues from an employer’s perspective, Legal Dive checked in on October 10 with Kacey Riccominiemployment litigation partner and counsel at Thompson Coburn LLP in Los Angeles.
Editor’s note: Legal Dive’s conversation with Riccomini has been edited for clarity and length.
Legal Dive: We’re less than a month away from the US presidential election. Does this theme of political discourse at work increase as we get closer to the big day?
KACEY RICCOMINI: It definitely does. And I would say that the more active the candidates or the political parties … whether it’s in any media or publishing, the more people tend to repeat it or refer to it, and sometimes that it is in the workplace and it may not be. totally appropriate.
What is the usual place for these types of speech complaints? Does it go to HR, maybe in-house counsel? And, in general, where are they resolved?
If there is, let’s assume it’s an online posting, or maybe it’s a statement made by another employee in the workplace, which is usually brought to HR’s attention. It can be taken to a supervisor and escalated to HR, and depending on the issues involved, and also the employees, it can also be escalated to internal counsel or potentially external external counsel.
What does a resolution look like in your experience?
It could be a variety of things. It really depends on the circumstances. Some statements may not violate certain laws such as the Fair Employment and Housing Act (California) or Title 7 of the Civil Rights Act. And so there is not much to do with these statements. It might be a conversation with employees about having respectful speech, or if they can’t do that, maybe not engaging each other in that speech, but if there’s something else in the post or the statement that was made really is a concern under, for example, Title 7, the Fair Employment and Housing Act or the Crown Act, something to that effect, then discipline, up to and including termination, may be some something that has to happen.
(Law of the Crown is a law in about half of US states that protects against discrimination based on a person’s hairstyle or hair texture.)
Is there much litigation around hostile political speech? You’d think a plaintiff’s attorney could do a lot with some of the more extreme cases, but maybe not?
I would say that the vast majority of discrimination claims, let’s say, are really focused on statements made by other employees, maybe a supervisor or manager, and some of them have a political aspect to them, but the focus of those statements is, really, , is it discriminatory? What is the appropriate approach under the relevant California and federal labor laws? So while politics may play a role, there haven’t been as many claims that focus strictly on statements that are allegedly political in nature. The focus should really be, does this statement or post violate other laws and we need to address that, or not?
If you go online, you can see the most extreme forms of political speech, and I guess I’m surprised that that extreme nature hasn’t entered the workplace in a way that leads to litigation.
This is a recent development from this year, only statements made outside the workplace and whether they have an impact on the workplace is something employers will need to assess. There was a recent case in the Ninth Circuit, Okonowsky to Garlandand in this case, an employee was targeted by another employee on Instagram. Several problematic statements were made, but some of them were of a sexually violent nature. And the Ninth Circuit was quite clear that off-site or third-party conduct could have the effect of altering the work environment so as to make it severe or pervasive under a harassment standard. So maybe there weren’t too many test cases before, and the view is that, well, if something happens outside of the workplace, you know, maybe we don’t have to address it, but that’s not really the case. And if something like this is brought to an employer’s attention, they should really investigate and address it and work with their attorney.
Do you think we will see more cases? And what do you do as an entrepreneur with a potential legal problem? Does the employer have to watch a particular person every day, just because they might become a liability?
Well, I mean, I wouldn’t necessarily recommend daily monitoring of, say, an employee, but you know, really, the focus should be on what is the behavior? Does it break any laws? Should we address it? It can be a conversation with the employee. So you know there is a concern that arises from some of his statements.
But to get back to your point, I think there is likely to be litigation in the future arising out of these types of statements by employees, or repeated statements by political actors. One is the case that came out of the Ninth Circuit that I mentioned. Another is that there are several states that have enacted or are enacting laws that protect employee political speech. To some extent, there are limitations. And then, as you mentioned a little bit, the radicalization, or really the polarization between the two sides, has led to, you know, kind of a lack of middle ground and a difficulty for people to have respectful conversations where there can be a difference of opinion
What are some of the most common questions you get from customers?
Concerns generally arise because someone at work has repeated a statement that a politician or political party is making that targets a particular group that, under California and federal labor laws, are actually protected. So when this happens in the workplace, there can be some confusion about whether the employer can address it to what extent, whether there are any protections that should be considered when it comes to the employee who does the statement… as well as the employee who is subject to it. So there is some confusion about what is protected and what is not, and in what context.
What advice do you have for employers asking whether they should have a policy on social media use or speech at work?
It’s a good idea to have these policies in place. Lawyers should review and assess these to ensure they are compliant, and as employment law evolves rapidly, in my experience, it is a good idea to check regularly. It’s not necessarily a problem to ban speech that threatens, physically, something. like that
But there’s a difference in, really, how far that goes and what level of specificity you want to get into the policy. So there has been a recent case, the Stericycle case that came out of the National Labor Relations Board, and the employer had a variety of policies, including a social media policy, and had some problems because the policy was not limited enough in the opinion of the National Labor Relations Board and, in fact, could be interpreted as a possible violation or prohibition of protected activity. Therefore, it is a very good idea to have an attorney review these policies and ensure that the conduct being addressed is fairly specific and limited and complies with relevant laws as they may evolve.
After the election, does the political discourse calm down or does the unhappy side become very active?
I can’t really predict how people might react to the election. You know, if there’s activity of concern later, and it affects the workplace in some way, employers will have to approach it on a case-by-case basis and be prepared to really enforce their pre-existing anti-discrimination. harassment and retaliation policies to the extent that these postings or activities, or perhaps statements at work, may fall under them.
What are your thoughts on corporate comments like we saw in 2020 after the death of George Floyd, where many companies felt compelled to share their views or social values. Is this kind of feedback useful to employers at the HR level in trying to lower the political temperature? Or is it a bad idea to go there?
I don’t think it’s necessarily a bad idea for companies to make public statements about certain events. I definitely think it’s more a matter for a PR firm than HR to make these kinds of statements, but employers can have their own political views and they can express them. That’s fine. This is not necessarily a problem. Where the employer should be careful is, you know, if what they say can be interpreted as an attempt to influence or force an employee to take or refrain from taking a political position or interfere with the ability to vote ‘this employee. There are laws specifically in California that prohibit this sort of thing. So it’s okay to have political opinions, but in general, you know, whether you’re an employee or an employer, it’s important not to go too far at work.
Does California or other states prohibit an employer from endorsing candidates and urging its employees to vote a certain way on a candidate or issue?
This is not something I would recommend. There are a couple of sections of the California Labor Code that actually prohibit interference with employee political activities, by threatening employees, for example, if they disagree or want to vote a certain way, or to prevent them from voting in a certain way.
How did you become interested in becoming a lawyer?
At first I didn’t think I wanted to be a lawyer, and I ended up taking some law courses in undergrad and found that I really liked it, and that was about it for me.
What did you study as a degree? what did you think you would do
I thought I was going to be a novelist, so I decided to start with an English degree.
When you started law school, did you know at the time what type of law you wanted to practice?
I knew I wanted to be in the room. I wanted to argue, I wanted to take depositions. At that time I had no chosen major. I knew I wanted to do a lot of litigation, and then I ended up working on employment cases, enjoying it and getting good results, and that’s really what led me to specialize. So here I am, litigating and also advising employers.
