Q.  Recently, two employees almost came to blows arguing over the merits of a Trump versus Clinton presidency. Can our company prohibit employees from talking about politics in the workplace?

A.  The 2016 presidential election has created the most intense and divisive political environment in recent memory. What can a company do if the banter of cable news, talk radio, and polarizing political Facebook posts spills into the workplace?

Because the First Amendment only limits the government’s ability to limit speech, an employer’s ability to prohibit free speech in the workplace depends on whether the employer is a public or private entity. Generally speaking, public employees have the right to free speech if they are conveying a message as a private citizen and the subject matter of the speech is a matter of public concern. However, private employees generally have no First Amendment protections in the workplace.

In most states, if a non-unionized private employer wants to prohibit political discussions at work, they may do so. As a practical matter (and from an employee morale standpoint), an employer is best served by enforcing its existing non-solicitation , dress code, and general conduct rules prohibiting behaviors such as harassment and workplace disturbances. Although it would be legal in many states and municipalities, we do not recommend for employers to discipline an employee simply for expressing a political opinion or candidate preference. If an employee’s political speech interferes with production or is harassing to other employees, however, an employer certainly can impose discipline. Likewise, if an employee’s attention is focused more on Hillary Clinton or Donald Trump than  his or her work, a private employer can and should take action.

If an employer disciplines an employee related to the employee’s political speech, the employer must ensure that the employee in question is not actually speaking out about workplace conditions (such as expressing support for a particular candidate because she advocates an increase in the minimum wage) because such activity may be considered concerted activity protected by the National Labor Relations Act. In addition, it is important to differentiate between off-duty and on-duty conduct. In many states, such as New York and California, for example, it is unlawful to discipline an employee for engaging in political discourse outside of the office, such as participating in a political campaign.

If a company does impose discipline, the employer should administer the discipline consistently to avoid violating anti-discrimination laws. If a difficult situation arises, err on the side of caution and consult legal counsel.

The 2016 presidential election creates unique challenges, as the major candidates are of different sexes and statements have been made throughout the election season regarding protected classes, including sex, race, religion, national origin, and disability. A political discussion (whether it is in person or online) can quickly devolve into discriminatory or harassing comments. Even though a presidential candidate may make sweeping generalizations about Mexicans, Muslims, or women, such behavior is inappropriate (and could be the catalyst for a harassment or discrimination claim) in the workplace and should be addressed through a company’s non-discrimination policy. Likewise, an employee’s comment about a particular candidate that is based on that person’s gender or other protected characteristic is not appropriate for the workplace. Now is a good time to review and update your policy prohibiting discrimination and harassment.

No two workplaces are the same and every company will need to examine its own workforce dynamics to determine what type of political activity is and is not appropriate, whether employee/supervisor training is required, and whether policies need to be put in place to preempt potential problems.