Your employees, similar to the rest of the world, likely are riveted by one of the most hotly contested and controversial elections in U.S. history: the 2016 presidential campaign. Regardless of whether your employees are with Her, feeling the Bern or sharing Trump-isms, they almost certainly are talking about the campaign and also may be talking about their political beliefs and activities while at work. This can lead to a myriad of employment law nightmares for you.
Rather than waiting for issues to materialize (or escalate), make plans to ensure your workplace is ready to respond to thorny issues at the intersection of politics and employment law.
Why Act Now?
The 2016 presidential campaign has seen commentary by the Republican and Democratic candidates and their supporters that illuminates why employers should be particularly concerned with politics in the workplace issues this election season. Your employees may have strong views about both the Republican and Democratic presidential candidates, who have each been viewed as divisive.
Given the types of viewpoints and comments taking center stage in the 2016 presidential election, it will not be a surprise if you see an increase in workplace issues such as:
- discrimination, harassment, and retaliation claims based on political affiliation and activities;
- discrimination, harassment, and retaliation claims based on gender, age, national origin, race, religion, and other protected categories as a result of employees and managers espousing colorful political views;
- unfair labor practice charges based on restrictions on employees’ Section 7 rights under the National Labor Relations Act (NLRA);
- violence in the workplace; and
- decreased employee morale and productivity.
What Employers Need to Know
Take care when disciplining or otherwise responding to complaints stemming from employees’ politically-related statements or actions. Certain state laws provide significant protection to employees with respect to the expression of their political beliefs and activities (in and out of the workplace).
Note that some states prohibit discrimination against employees who engage in political activities (which can include the “espousal of a candidate or cause”) that are related solely to off-duty political activity or to political activity or affiliation (whether off-duty or not).
Certain states prohibit employers from forcing employees to attend employer-sponsored political events; maintaining records of employees’ off-duty political activities; restricting employees’ off-duty use of “lawful products” (which can include social media platforms such as Facebook, signage, etc.); or coercing or dictating to employees how they should vote (which can include distribution of literature by the employer).
In addition, certain states have allowed wrongful discharge claims to proceed against employers that discharged employees for their political views or activities.
If you attempt to limit or control employees’ politically-related speech, be careful to comply with the NLRA, which guarantees employees’ rights to organize and bargain collectively with their employers and engage in other protected concerted activity. Specifically, exercise caution when attempting to limit or control employees’
- political speech, if it amounts to “concerted activity” that pertains to their working conditions;
- buttons or clothing displaying political messages if such messages are related to their working conditions (though certain exceptions apply); and
- right to solicit support for political candidates in connection with their working conditions during nonworking time and to distribute political materials related to their working conditions in nonworking areas during nonworking time.
Also beware of the numerous federal and state equal employment opportunity (EEO) laws prohibiting discrimination, harassment, and retaliation based on various protected categories that may be implicated by the presidential election (such as religion, race, national origin, gender, etc.). It is critical that you take appropriate action to investigate and respond to EEO claims even if doing so requires careful planning and coordination to avoid political affiliation claims.
Of course, every workplace is different, and some employers may anticipate a higher likelihood of increased workplace violence as a natural result of an uptick in heated disagreements between coworkers because of politically related speech. Such employers should be particularly careful to monitor their workplaces for any signs of mounting tension arising out of the politically related views and activities of their employees and take steps to alert the proper individuals internally (and, if necessary, externally) to prevent any violence at work.
Also take care to comply with various state leave laws that provide time off for voting, service as an election judge and other election-related activities, all of which are generally deemed “protected activity” under the pertinent laws. Such laws often prohibit interference with the protected activity as well as discrimination and retaliation.
Finally, plan ahead to address workplace morale and productivity issues during this election cycle. Business solutions to these issues can include a well-timed (likely temporary) increase in workplace perks (e.g., snacks and beverages, etc.); rewards for maintaining certain productivity goals (financial or otherwise depending on the particular workforce); modifications to vendor agreements, delivery deadlines, and quota requirements if slowdowns are anticipated; and an increase in workers’ scheduled hours to ensure existing deadlines or quotas are met.
Five Survival Tips
As with any workplace issue, act deliberately and strategically to minimize liability and prevent workplace disruptions. The following five steps will help you survive this election season:
- Work to determine which laws apply to your workplace and develop an action plan to ensure compliance (particularly important if you employ individuals in different states).
- Draft (or update) relevant workplace rules and policies (such as those regarding limitations on the use of the employer’s equipment and email for nonbusiness use where permitted under the NLRA; restrictions on violence in the workplace; and statements on nondiscrimination, antiharassment, nonretaliation, etc.).
- Adequately train managers to:
- identify and address political speech that violates workplace policies and rules (such as hate speech) in a consistent, dispassionate, and neutral manner to avoid claims from an offending speaker;
- appropriately handle and escalate to human resources any complaint of discrimination, harassment, or retaliation based on a protected category (whether the complaint stems from politically related speech or otherwise); and
- avoid participating in political speech or showing favoritism to like-minded employees.
- If appropriate for your workplace, create a plan for increasing employee morale and maintaining productivity this election season, but resist the desire to encourage employees to discuss political views at work. (For example, you may not want to televise debates in your break room.)
- Avoid complacency. Inaction can be costly. The 2016 presidential elections and related political activities and viewpoints have or will soon affect your workforce.
There is no question the 2016 presidential election is unique in its potential for giving rise to workplace issues. Although the makeup of your workforce may dictate the type of employment issues you experience, it is likely that, as a result of the election, your workplace will see an increase in some issues and may even be forced to grapple (for the first time) with other issues.