With the 2024 election in full swing in the U.S., employers should anticipate political discussions and activity in the workplace. From employees taking time off from work to vote to expressing their political opinions during work, employers should remember a few key points related to their employees’ rights to eliminate potential issues in the workplace.

Providing employees voting leave

Federal law does not require an employer to provide employees with time off to vote, but state law might. Currently, 28 states and the District of Columbia require employers to provide voting leave. These laws, however, vary significantly in what is protected. 

For example, Pennsylvania does not require employers to provide voting leave, while California, Maryland, New York and 18 other states including District of Columbia specify a particular amount of paid voting leave. Additionally, New York and California require employers to post notices of an employee’s right to voting leave in advance of an election.

Thus, prior to election day, it is important to review that your current voting leave policy and to remember the following questions during your review:

  1. Does any applicable state law require you to provide voting leave to employees?
  2. Has the company expanded geographically since the last election cycle?
  3. How much leave time must you permit?
  4. Are you required to pay employees for this time?
  5. Are you required to provide notice to your employees about their right to take such voting leave?

Political expression in the workplace

“I have the right to free speech” is an often recited statement by employees discussing their ability to speak about politics in the workplace. However, this is a common misconception, at least for private employers. Unless an employee is working for the government, the First Amendment does not apply to private employers and a private employer can regulate an employees’ political discussions in the workplace. However, before prohibiting political speech in the workplace all together, employers must remember that other state or federal laws could be triggered by such a prohibition. 

The National Labor Relations Act (NLRA) protects employees who engage in concerted activity or discussions involving the terms and conditions of their employment. The NLRA applies to every non-supervisory employee, union or non-union, in every workplace. Political discussions may trigger NLRA rights when such discussions are connected to work related issues, for example, when the employee’s statements can be tied to a previously reported complaint of race discrimination or their working conditions. 

Thus, while it may be enticing to implement a blanket policy prohibiting all political discussions in the workplace it can open a can of worms. A better approach would be to evaluate each discussion on a case-by-case basis and consult experienced legal counsel to address any concerns or assist in the drafting of any workplace policies regarding political expressions in the workplace.