In an era where mass protests against the Trump administration are common, it’s inevitable that strong political and cultural opinions are going to make their way their into the workplace. But how do employers draw a line between expressions of free speech and potential drivers of workplace divisiveness?

While HR has grappled with monitoring political speech in the workplace amidst growing tension in recent years, those efforts also extend to what employees can wear and display.

For instance, employees wearing a keffiyet or hatta in support of Palestine or those donning an “ICE Out” button to protest immigration crackdowns can “elicit responses that are not aligned with the views of other colleagues or the desired environment of the employer,” says Heidi Reavis, managing partner of law firm Reavis Page Jump LLP.

The risk for division is high, “particularly in these fraught times,” she says, but cautions employers to remember that they largely have the authority to determine dress and display standards.

“The First Amendment to the U.S. Constitution protects individuals from government interference with expression; however, the First Amendment does not apply to the private workplace setting,” Reavis says, calling it a “common misconception” that private employers can’t do much to regulate employee clothing and symbolic displays.

Generally speaking, she says, employers are “permitted to put company interests before individual outward expression.”

3 considerations for policy-making

That’s not to say that there aren’t nuances HR must consider when setting and communicating policy. Reavis advises decision-makers to consider:

Current laws on protected expression

While private employers can largely determine dress codes in the workplace, they must be mindful of legal exceptions. For instance, Reavis points to the National Labor Relations Act, which generally permits employees to advocate for improved workplace conditions with “concerted activity” like wearing messages promoting safety concerns or better pay.

“But when outward expression crosses the line into political communications,” Reavis cautions, “both employer and employee face a range of potential legal, as well as practical, challenges.”

Local-level regulations

Ensure workplace policies comply with state and local laws. For instance, Reavis notes that about a dozen states ban employers from retaliating against employees’ political speech or activities. States, including New York and California, have laws on the books that protect employees from employer action against their political expression outside of the workplace. This is an increasingly important consideration, as employers grapple with the impact of employee participation in off-hours protests and social media postings.

Yet, if such expressions contain “inflammatory language or symbols,” Reavis says, they may be cause for employer action, as they can be interpreted as contributing to toxic work environments or fueling distraction and bullying.

“Employers still have the right to prevent disruption and hostility in the workplace,” Reavis says, “which is often where the rubber meets the road.”

Workplace norms

Be cognizant of what the company’s policies and culture already allow when it comes to free expression.

“For example, if an employer permits classically ‘patriotic’ symbols in the workplace—flags, slogans, hats and the like—but seeks to prevent critical or reactive symbols, the employer may be exposing itself to claims of discrimination and retaliation,” Reavis says.

Cautious and clear in communication

While Reavis advises HR leaders to thoroughly understand state and local laws regarding workplace expression, they should also be prepared to work closely with their legal teams if policy questions or potential violations arise.

“Unless the expression is harassing, discriminatory or disruptive, dial your lawyer before dialing it down,” she says, urging employers to be “cautious and reflective as opposed to reactive” when communicating to the workforce about regulating political expression. Those who move too quickly could prompt an “internal uproar” or legal challenge.

As leaders question when and how to intervene if politically related issues arise, focus on the employee impact of such expression, Reavis advises, and not the particular ideology of that expression.

“Although in all cases,” she says, “harassing, racist or other discriminatory expression should not be tolerated—a bright line all employers should maintain.”

Getting proactive to modernize policies

There are proactive strategies employers can take to drive inclusive conversations and set the tone from the top. For instance, one-on-one sessions with HR professionals, “open door” initiatives and third-party counseling can all help surface issues while communicating the employer’s investment in the workforce’s wellbeing.

Reavis says some employers are leaning into the provision of “safe spaces,” including internal group discussions on social and political topics. The well-meaning approach does, however, carry a risk of marginalizing group members.

“Our firm has seen an uptick in disputes and litigation resulting from internal initiatives intended to unify employees, where individuals in the group felt offended or targeted based on their expression and/or profile,” she says.

Today’s increasingly polarized political environment means that policies and practices should be reevaluated across the board to ensure they are clear and consistent.

Reavis advises HR professionals to work with legal and communication professionals as part of a full compliance and strategic review. Handbooks, group discussion policies and town hall formats should all be examined to ensure they emphasize the importance of “respect and collegiality,” she says.

“Many employers already have handbook guidance concerning speech and attire, but not necessarily with the contemporary era in mind,” Reavis says. “Employers should assume external events are not parked at the company door.”

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