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An inverted flag has long been known as a sign of distress, but when upside-down U.S. flags are displayed in the workplace as political statements, employers are in a position to take action, experts say.
Incidents of inverted flags increased during the Obama administration, spurred on, in some cases, by those who identify with “tea party” protests against government spending and, in other cases, by those who say they object to a particular government policy, such as health care reform.
The intent of such protestors is to signal their belief that the United States is in serious trouble.
As 2010 political campaigns ramp up, the number of incidents involving inverted flags could become more commonplace, sources say, and some incidents have drawn strong reactions. In several news reports, people have objected and called police or other authorities about inverted flags, complaining that the symbol had been desecrated.
Although evidence is only anecdotal at this point, inverted flags have begun to appear in some workplaces, leading HR professionals to ask: “Is this proper and protected free speech?”
Authorities called on to investigate inverted flags have been quick to point out that displaying an upside-down flag on private property is not illegal and is protected by free speech. Therefore, an inverted flag can be used as a political statement. However, when a U.S. flag is displayed somewhere that is not privately owned by the displayer, the owner of the property has the right to decide how the flag is displayed.
Thus, the answer to the question is pretty clear cut, according to attorneys interviewed for this article. Free speech and displays of political affiliation are not protected rights in the workplace.Employers have the right to set rules and standards on what employees can and cannot display in their offices and workspaces.
“Businesses are well within their rights in prohibiting political materials, statements or displays within their offices or facilities,” said Steven Wheeless, a partner in the Phoenix law office of Steptoe & Johnson LLP. “Many employers include policies on political statements and displays as part of their corporate solicitation policy.”
Some employers allow employees to have posters, photos and other decorations at their desks and in their cubicles as long as they are not obtrusive.
Some employees display flags and other patriotic symbols.
“In most cases, displays of a patriotic symbol like a flag, eagle or other national symbols are not construed as political statements or stances and are generally acceptable,” said Jonathan Segal, a partner in the Philadelphia law office of Duane Morris LLP. “But I think it’s pretty evident that an inverted flag is not a traditional display of patriotism and construes a political message. So employers are well within their rights to ask employees that they display a U.S. flag in the traditional manner” if they wish to display it.
Employers can tell employees that displays of flags are allowed, yet they should emphasize that flags must be displayed correctly, according to Wheeless.
“Just ask yourself: ‘Does an upside-down flag pass the smell test?’ And I think most of us already know the answer to that,” Wheeless said.
The U.S. flag code provides a guide on how the flag should be displayed. However, the flag code is merely a guideline and not enforceable by law.
Segal suggested that the 2010 election cycle provides a good opportunity for managers and HR professionals to review and familiarize themselves with company policies regarding solicitations, e-mails and political displays in an organization’s offices, work spaces, meeting rooms and common areas.
However, just because political displays and statements are prohibited in the workplace does not mean employers are discouraging employees from participating in the political process.
“There is a distinct difference between encouraging employees to vote and exercise their civic duties, and prohibiting employees from displaying political material or making political statements in the workplace,” Wheeless said. “Employers should urge their employees to get out and vote. Participating in the civic process should be considered a privilege and duty by us all.”
Wheeless said elections give HR professionals a good reason to take a proactive stance by examining organizational policies on political displays and statements in the workplace and by reviewing the policies and processes with managers and supervisors.
“I think that it’s a great opportunity to show that HR has covered all the bases and is prepared to address problems if they arise,” he said. “HR professionals can send a clear message to upper-level management that they are on the job and providing a value-added service during this highly charged political climate.”
Bill Leonard is a senior writer for SHRM.
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