Carnac the Magnificent says – Politicussin

December 5th, 2018

Aaron Warshaw at Ogletree Deakins


This blog was written by Aaron Warshaw at Ogletree Deakins, which authors our Model Policies and Forms for Tennessee Employers, Massachusetts Human Resources Manual, Colorado Human Resources Manual, and Employee Benefits – An Employer's Guide. You can find the original blog post and their Our Insights blog on their website.

 

Addressing Political Discussions in the Workplace: Six Answers to Employers’ FAQs

Aaron Warshaw

The United States is certainly as divided as ever along partisan lines leading up to the November 6, 2018 midterm elections. Many employers across the country are uneasy about managing heated political discussions in their workplaces without running afoul of employment laws. Below are answers to some of employers’ frequently asked questions about political expression in the workplace.

What are common employer concerns regarding employees’ political expression?

Political expression on social media is a real concern in the workplace, especially when employees choose to be online “friends” with coworkers. Another issue is that some politicians have made public statements that, if uttered in a workplace, would possibly lead to an employment termination. These statements may give some employees the false impression that similar speech is appropriate at work.  As a result of this political rhetoric, news coverage, and midterm election advertisements, it should not be surprising that extreme partisanship and malapropos speech have recently found their way into the workplace.

Do First Amendment protections apply to employees expressing their political views in the workplace?

The First Amendment’s free speech protection is perhaps one of the most misunderstood legal frameworks in the workplace. To be clear, there are typically no free speech restrictions or considerations for private employees because the First Amendment protects against government actors only. As long as the workplace restrictions do not otherwise violate the law, private employers are free to dictate what is and what is not considered acceptable workplace behavior. Employers may choose to remind their workforces of this in a couple ways, through either routine anti-harassment training or timely reminders to engage in civil discourse during election season.

What can employers do if political discussions get out of hand?

It depends upon the circumstances, including what the employee specifically said, how coworkers reacted, and whether the employer previously warned the employee about similar conduct. Discipline may be appropriate if the employee’s speech becomes aggressive or unprofessional, if the speech reflects poorly on the employee’s judgment, or if the speech is in violation of anti-harassment and equal employment opportunity policies. Employers should consider treating employees the same when addressing potential misconduct issues, regardless of whether or not they are top performers.

What if employees engage in name-calling based on race or national origin when arguing over politics?

There are no special rules or restrictions on enforcing an anti-harassment or equal employment opportunity policy when the speech is political in nature. It may be helpful to have effective policies and training in place in an effort to prevent and react to such conduct, and use election season to remind the workforce that the company takes its equal employment opportunity commitments seriously.

Can employers ask employees not to discuss certain political matters on social media or monitor the social media accounts of their employees?

A policy prohibiting employees from discussing politics on social media could violate state and local laws that prevent employers from restricting lawful off-duty activities. Another issue is that such restrictions could limit protected concerted activity, such as union membership or other workplace activities protected by the National Labor Relations Act (NLRA). Though recent studies have shown that many employers do in fact monitor their employees’ publicly available social media accounts, employers may want to do so with caution.

How can employers discuss policies limiting political discussions at work with their employees?

Employers can generally remind employees about their obligations under the company’s policies, including anti-harassment and equal employment opportunity policies, and to always treat one another with respect and civility. Management is always entitled to remind employees that they are at work to perform their jobs and that they are free to discuss politics during their free time. However, it is likely impossible to completely prevent political discussions in the workplace. Healthy discourse among employees with different viewpoints can in fact be productive as long as it does not get out of hand.

The author of this article was previously quoted on this topic on SHRM Online.

This article was drafted by the attorneys of Ogletree Deakins, a labor and employment law firm representing management, and is reprinted with permission. This information should not be relied upon as legal advice.








Dr. Love(less) he don't need no office life
Religious holidays - what to do, how to do it and a calendar
If Saint Valentine had a workplace romance policy what would it be
Workplace romance red (heart-shaped) flags
Super Bowl 2019 at the Office
Workplace Christmas Quiz (this is legit and will secondarily eat up some time before you get to go home)
List 10 Up: Top ten holiday party tips
Holiday party what-would-you-dos
Save the Office Holiday Party
Depression – what can an employer do?
Holiday stew – ingredients for a happy and non-litigious holiday
Costumes, booze and the Great Pumpkin – beware the office Halloween party
Help hiring holiday help here
Year-end or holiday incentives
Holidays
The impact of Super Bowl(ing) Part Deux
You can be the boss (of some confidentiality and email)
OR Required break for a meal. Period.
If you got your social media policy from Walmart, beware
Politics in the workplace is like Malört in ice cream
IL Tidal wave (or tsunami) of new laws for Illinois employers
No-match letters from the SSA - read and understand, then react
Biometrics in the Workplace
Controlling the political speech of buttons*
Cursing, surfing, weapons, gadgets – illegal, inappropriate or OK?
Election leave – employer's civic duty, migraine, or just wishful thinking (election, leave!)
Disability/pregnancy practices – what not to practice
IL – Required expense reimbursement for your employees, not Bill Self
Public disclosure of confidential information is easier than you think
If religious accommodation and a flu shot both equal angst, is that the transitive or substitution property?
Workplace shootings – 20 can-dos to prevent them
No call/no show shows. No what about it.
If it's called a dress code, can I wear pants?
TN: Conceal and carry means post to prohibit or permit
Four-legged office mates and the pawternity policies they benefit
School-related parental leave does not mean you forge a note from your kid
Background checks of the future are continuous
Treating service animal requests (always treat the animal)
Prepare for saying "No" – you need to decide how to refuse service
List 10 up: What's the deal with employee handbook rules?
No, you can't sleep on the job
Should you give your employees a little Slack – or do they have enough already?
Zero tolerance for "zero tolerance" policies
PTO on the house!
New rules for work rules
Guidelines for a valid no-solicitation/no-distribution policy
Personal hygiene in the workplace
Remote workers and the remote control
Conducting internal I-9 audits
Attendance policies
Nepotism: favoring relatives and friends in the workplace
The Form I-9 has changed… Again!
Arizona sick day policy
Vacation policies and time off
Employee handbooks – getting a handle on your policies
Social media – hiring, firing and discipline
Termination and social media posts - peanut butter and vinegar?
How to Address an Unflattering Video of an Employee