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As a consequential U.S. election nears in less than a month, determining political control of Congress and the White House, political speech in the workplace is rising. Millions of voters — especially those in seven so-called “swing states” — are saturated with political advertising across their televisions, phones and computers. 

While U.S. laws don’t prevent employers from policing the type of speech permitted in their workplaces, the issue is particularly fraught as some states have specific laws protecting political speech at work. Meanwhile, federal laws generally seek to protect certain types of activities in the workplace, such as the right to assemble or to organize a labor union or other type of employee group.

All of which is to say that countless companies — and their human resources and in-house legal counsel — are left contending with the potential for political speech to mutate in ways that could create legal problems.

Thompson Coburn

Kacey Riccomini

Permission granted by Thompson Coburn

 

To explore some of these issues from the employer perspective, Legal Dive checked in on Oct. 10 with Kacey Riccomini, an employment litigation partner and advisor 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 from the U.S. presidential election. Does this issue of political speech at work ramp up as we get closer to the big day?

KACEY RICCOMINI: It definitely does. And I would say that the more active political candidates or parties are…whether it’s over any form of media or posting themselves, the more that people tend to repeat it or refer to it, and sometimes that’s in the workplace and may not be entirely appropriate.

What is the usual venue for these types of speech complaints? Does it go to HR, maybe to the in-house counsel? And where do these generally get resolved?

If there is, let’s say it’s a post online, or maybe it’s a statement made by another employee in the workplace, usually that’s brought to HR’s attention. It might be brought to a supervisor and escalated to HR and then, depending on the issues involved, and the employees as well, it may also be escalated to in-house counsel or potentially external, outside counsel.

What does a resolution look like, in your experience?

It could be a variety of things. It really depends on the circumstances. It could be that some statements may not run afoul of certain laws like the (California) Fair Employment and Housing Act or Title 7 of the Civil Rights Act. And so there’s not much to be done about those statements. It may be a conversation with the employees about maintaining a respectful discourse, or if they can’t do that, to perhaps not engage with one another in that discourse, but if there is something else to the post or the statement that’s made that really is a concern under, for example, Title 7, the Fair Employment and Housing Act, or the Crown Act, something along those lines, then discipline, up to and including termination, may be something that has to occur.

(The Crown Act is a law in about half of U.S. states that protects against discrimination based upon a person’s hairstyle or hair texture.)

Is there much litigation around hostile political speech? One would think that a plaintiff’s attorney could do a lot with some of the more extreme instances, but maybe not?

I would say that the vast majority of, let’s say, discrimination suits, are really focused on statements 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? Which is the proper focus under pertinent employment laws in California and federally? So while politics may be an influence, there haven’t been that many claims that strictly focus on statements that are allegedly political in nature. The focus really should be, does this statement or post violate any other laws and we have to address it, or does it not?

If you go online, you can see the most extreme forms of political speech, and I guess I’m surprised this extreme nature has not gotten into the workplace in a way that leads to litigation.

That’s somewhat of a recent development as of this year, just statements that are made outside of the workplace and whether they have an impact in the workplace is something that employers are going to have to evaluate. There was a recent case out of the Ninth Circuit, Okonowsky v Garland, and in that case, an employee was targeted by another employee on Instagram. There were a variety of problematic statements that were made, but some of them were sexually violent in nature. And the Ninth Circuit was pretty clear there that offsite or third-party conduct could have the effect of altering the working environment to make it severe or pervasive from a harassment standard. So it may just be that there weren’t too many test cases before, and the view being that, well, if something occurs 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 that is brought to an employer’s attention, they really should investigate it and address it and work with their counsel.



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