Challenges for Private Employers in Pursuit of Neutral Messaging Policies

by Allison Moore, Esq

Bulletin,  Hiring

As social and political tensions flair in response to Black Lives Matter protests, the upcoming presidential election, or even in the response to COVID-19, employers are left to examine what the organizational reaction should be, if any, to the growing pressure. Fostered by distinct goals of leadership, company culture comes in many flavors concerning policies surrounding personal, political, or religious messages in the workplace. Employers have significant discretion to craft enforceable employee policies about appropriate workplace conduct, with some notable exceptions.

What is a neutral messaging policy?

A neutral messaging policy prohibits the display of any political or religious insignia or other personal messaging by an employee in the workplace. Such prohibited display can include signage, clothing, accessories, or even face mask materials. Most neutral messaging policies allow employees to discuss personal pursuits at the workplace as long as performance goals are otherwise met.

An employer that engages in customer service in-person by welcoming the public into the worksite often desires to display a consistent welcoming worksite atmosphere to its in-person customers and the external public through its customer messaging.  This business practice often goes hand-in-hand with the adoption of a neutral internal messaging policy.

How to Construct an Internal Neutral Messaging Policy

A formal neutral messaging employer policy that is carefully crafted and uniformly enforced is an option for employers in the effort to reduce workplace dissension, increase worker productivity, and provide for a welcoming customer-facing workspace. Such a policy may be as simple as:

“Employees may not wear or display any personal, political, or religious clothing, accessories, or messages during worktime at the worksite.”

In order to avoid the legal pitfalls in the exceptions discussed below, the employer may want to add:

“Nothing in this policy is meant to interfere with employees’ rights under federal law to engage in protected and concerted activity, including employees’ ability to discuss terms and conditions of their employment.”

Legal Considerations

Employees, other than public sector employees, do not have a right to “freedom of speech” at work under the First Amendment. The First Amendment applies only to government action. Aside from the rights provided by one of the limited exceptions discussed below, employees generally have no legal protections for political activities in the workplace. In fact, an employers may be able to lower the risk of claims of employer discrimination, harassment, or retaliation for violating federal and state discrimination laws with evenly enforced employer policies prohibiting the display of political affiliation or other personal views. This is because it may provide evidence that an employer is likely unaware of an employee’s political, religious, or other personal views, and therefore has not discriminated based on those views.

Two general exceptions to the principle that private employers may implement restrictions on personal messaging in the workplace:

First, some states have specific laws concerning participation in political activities at work. Colorado, Utah, and Arizona all restrict employers from interfering with voting rights, distributing political messages with paychecks, and coercing employees about how employees should vote. In Colorado employers are also prohibited from interfering with employees’ rights to “engage[] or participat[e] in politics or from becoming a candidate for public office or being elected to and entering upon the duties of any public office.”[1]. Keep in mind that, in practice, the prohibition of interference with political activity has not yet been applied to the general expression of personal political opinions in the workplace. Instead, the statute prohibits employers from discouraging employees from participating in the political process outside of the workplace, and no case exists where the courts have considered this prohibition in the context of workplace activity or speech.

Additionally, Utah has a law that requires employers to allow certain types of expression in the workplace.  Specifically, Utah law says “An employee may express the employee’s religious or moral beliefs and commitments in the workplace in a reasonable, non-disruptive, and non-harassing way on equal terms with similar types of expression of beliefs or commitments allowed by the employer in the workplace, unless the expression is in direct conflict with the essential business-related interests of the employer.”  (Utah Code 34A-5-112)  Neutral expression policies for Utah employers must make allowances for the types of expression protected by this Utah law.

Second, Section 7 of the National Labor Relations Act (NLRA) restricts an employer’s right to limit non-supervisory employees’ communications about wages, hours, and other terms or conditions of employment. Such restrictions protect both non-union and union employees and have been found to extend to “messaging” such as clothing, accessories (like buttons and patches), and signage. This protection views the relationship between the message and the terms or conditions of employment. A simple Black Lives Matter sign would likely not rise to the level of a protected message under Section 7. Still, the same sign with the addition of “Raise the Minimum Wage” is likely protected speech by the NLRA because of the discussion of wages. The risk in denying such a display is heightened when more than one person is displaying or discussing the same likely protected message, or the employee displaying the message is seeking to initiate, induce or prepare for group action. When more than one person contributes to the conversation, it could rise to protected concerted activity regarding the terms and conditions of employment. There are limits to this protected activity. Messages or communications otherwise protected will lose NLRA protection if they are expressed in a manner particularly “opprobrious, disloyal, malicious, or disruptive to workplace discipline.”

Finally, employers can protect themselves further from infringing on the rights of employees by strictly and evenly enforcing a neutral messaging policy. Recent news provides examples of several large employers (Starbucks, Wawa) walking back neutral messaging policies with regard to Black Lives Matter insignia.  A closer view reveals that these employers had not enforced their policies uniformly—distributing buttons and attire celebrating LGBTQ rights and marriage equality—negating any protection they may have had in adopting the policy. Employers cannot indiscriminately pick and choose the messages that are allowed to be displayed in the workplace, either all (non-objectionably offensive) messages are allowed, or no messages are allowed.

Practical Considerations

Communicating about a new neutral messaging policy is just as important as enforcing it. The Why is just as important as the What. Employees are often prone to be suspicious of motives for any policy change. They crave an understanding of how a neutral messaging policy can support the organization’s focus on productivity and conflict avoidance. Employers that choose public-facing and internal neutral messaging policies without offering employees motivation for the decision often receive feedback from employees expressing personal views on the choice not to espouse a public position on a social or political matter.

Employees may be concerned that if the employer doesn’t publicly support a cause, they are not in favor of it. Employers need to help employees understand the reason for the policy and why it is a business development tool rather than a failure to express important values. Employee concerns related to the meaning of a “void of message” can be met as an invitation to start a conversation on issues that matter inside the workplace. An organization does not value its employees if it engages in or encourages discriminatory or other illegal employment practices. Invite active and early reporting by employees of alleged discriminatory treatment with respect to any protected class, and reiterate that illegal employment practices will not be tolerated. Renew your commitment to actively listen and respond to reports of concerning conduct. Prove to the employees that they are respected and the most valued resource of the organization—productivity will follow.

[1] CRS 8-2-108 (Unlawful Prevention of Participation in Politics)

About the author
Allison Moore, Esq

Allison E. Moore is a staff attorney for Employers Council’s Denver Employment Law Department. She is licensed to practice law in Texas and Colorado and routinely counsels and represents employers in matters related to wage and hour, discrimination, unemployment, and other employment matters. Prior to joining Employers Council, Allison worked in private practice and managed her own employment law firm, where she managed complex discrimination and high technology industry matters for individuals and employers. Allison received her law degree from the University of Houston Law Center and her bachelors in science in Mechanical Engineering from Texas A&M University in College Station.