10-04-2017
By Jody Stein, Esq.
The 2016 presidential election triggered substantial shifts in the tone of our conversations about politics. Democrat vs. Republican or left vs. right, the impact has been one of deep division with many of us having difficulty finding that middle ground. For employers, these fierce political rifts create new challenges to maintaining a workplace where employees can work together productively.
The American Psychological Association published an article earlier this year noting the increase in workplace stress and cynicism resulting from the 2016 presidential election. Part of this stress comes from the increased political discussions at work.1 Fifty-four percent of employees surveyed reported discussing politics at work, and 40% said they observed that the outcomes of these discussions were negative.2 The consequences of these discussions have included “reduced productivity, poorer work quality, difficulty getting work done, a more negative view of co-workers, feeling tense or stressed out, and increased workplace hostility.”3 While some of these political discussions may have settled down, events such as Charlottesville, the termination of a Google engineer over controversial statements about women, and the recent dissension over athletes “taking a knee” in the NFL show that tense conversations are likely to continue. The challenge for employers: how to have a respectful workplace when controversy seems to have become the norm.
The path to a more respectful workplace begins with an understanding of the laws surrounding speech in the workplace.
Legal Rights to Speech
What legal rights do employees have to free speech in their workplace? The answer to that question depends first on whether the employer is public or private. Local, state, and federal employees are protected by the First Amendment. Thus, those employees have a greater right to speak without repercussion by their government employer. The courts have traditionally limited protection to speech that relates to matters of “public concern.” What constitutes a public concern has not been defined conclusively but has included: testimony in front of a state legislature; statements regarding perceived racially discriminatory policies; environmental violations; and failure to provide safe working conditions.4 Public employees also may not be penalized for supporting a particular political candidate.5
For those employees working for private employers, the First Amendment does not protect their political speech rights. Generally, employers may protect their legitimate business interests and that may include firing an employee for political expression that disrupts the workplace, interferes with the employee’s work production, or infringes on business interests.[6] However, an employer’s ability to act on political speech made by employees is limited by federal and state law.
The National Labor Relations Act (NLRA) empowers employees to speak and engage in concerted activities for their “mutual aid and protection.”7 Thus, an employee’s political speech that broadly relates to the terms and conditions of his or her employment will likely be protected. Employers have some power to limit the use of company resources for political activity.8 The line between political and NLRA protected speech is not a bright one and can be tricky to navigate. The National Labor Relations Board has upheld an employee’s right to “mixed communications” which may contain both protected and unprotected discussions.9 Workplace policies pertaining to speech should be narrowly constructed to comply with the NLRA.
Many states have specific laws prohibiting adverse employment acts against an employee for political acts, including lawful political activity outside of the workplace. As these laws vary greatly from state to state, employers should become familiar with any relevant state statutes governing their employees’ political speech.
Furthermore, employers should tread carefully for political speech that overlaps with discrimination laws. Federal and state anti-discrimination laws protect groups of individuals based on sex, gender, race, religion, nationality, age, and so forth. If an employer’s political speech and its response to political speech are not equitable, they could evidence disparate treatment, discrimination, or adverse action against protected employees.10 When employees themselves enter into discussions implicating protected characteristics, such as a political candidate’s age or gender, or the race of people supporting a candidate, the anti-discrimination laws may require an employer to investigate and possibly take appropriate corrective action.
Employers do have some leeway in taking action on political discussions from a legal perspective. However, employers will be better served by maintaining equilibrium in the workplace.
Civility Requires a Thoughtful Approach
Employees are reporting more political conversations turning into arguments and 30% reported that employees are discussing politics more than they are talking about work.11 Political changes are afoot and many employees are impacted in both positive and negative ways. Because of the number of hours spent there, the workplace is inevitably a space where employees will voice their feelings on these political changes. With passions high, employees may speak to each other with anger and condescension, provoking rising tensions. Such conversations make it harder to work with each other and would likely impact productivity.
The work environment should be a place of mutual respect where employees feel valued both by their co-workers and their employer. This mutual respect must begin with management. Through actions and interactions with employees, management should create and foster a culture where diverse viewpoints are welcome and heard yet kept within reasonable limits. It is appropriate for management to let employees know that their focus should be work. Management should be transparent in its expectations from employees and policies should be clear so that everyone understands what is acceptable.
Consider training management on how to approach and diffuse situations that have become heated. Helping employees learn to walk away and let disagreements stand will help keep them productive. Encourage employees to think about the long term; their working relationships will extend beyond the current hot button issue. Supervisors can openly acknowledge the tensions and the fact that these are emotional subjects. Once the employee’s position has been acknowledged, supervisors can focus and encourage the productive use of work time. Managers must tread carefully when speaking their own political opinions to avoid making employees feel coerced to support those views.12
A code of conduct section in an employee handbook should outline company expectations that all employees will treat each other with dignity and that employees will respect differences in opinions. Anti-harassment and anti-discrimination policies and procedures should also help manage challenging politics. A clear reporting procedure for discrimination and harassment complaints may also be used by an employee feeling uncomfortable with the direction of political discussions. Knowing who to complain to and understanding how the company will proceed will help employees feel protected and may temper emotions. Employers must responsibly enforce their policies, treating everyone equally regardless of the employee’s political viewpoint.13
Employers must walk the tightrope of encouraging workplace discussions that are cooperative and non-discriminatory while still ensuring compliance with the NLRA’s right of concerted activity. Aside from possible NLRA violations, complete bans on political conversation may be difficult to police and create a negative impact on employee morale. Desirable outcomes will be better achieved by policies that are focused on minimizing distractions.
Address electronic communications in the employee handbook. These types of communications can be become as emotional as verbal conversations and are much more easily misinterpreted. Counsel employees that they should only use the company’s technology for business-related purposes and that internet activities will be monitored. Any such policy will necessarily have to exclude social media used in support of NLRA protected acts.14 Take caution to ensure that your social media policies and practices are applied fairly and consistently to insure compliance with anti-discrimination laws.15
Conclusion
With emotions high, best practices require employers to proceed thoughtfully with the goal of mutual respect between employees. Management’s approach will set the tone for the workplace, giving employees a fair understanding of what is acceptable. If employees are supported and encouraged to keep conversations within appropriate limits, a productive and respectful workplace can be achieved irrespective of the political climate.