What are the consequences of political discussion in the workplace?
In a big election year like this year, there is an intensified discourse on politics and all things related, as the current realities of a 24/7 news cycle and the ease of access to information that social media brings, adds to what tends to be an already hot and emotional debate. So what happens when political discussion and activity infiltrates your company’s workplace?
It is easy to laugh off your employees’ debate at the water cooler (the physical and virtual) about sports and reality television. It is far more likely that emotion and judgments will run deeper and last longer when it comes to the issues blowing in the political winds. From your company’s standpoint, political-related debate among employees has the potential of reducing productivity. But, more critically, it also serves to harbor bias and resentment that could lead to harassment and discrimination claims by your employees.
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There is no obligation to monitor everything, everywhere, but your company should be sensitive to the notion that workplace harassment claims involving religion and national origin have seen a dramatic uptick in just the past couple of years. Workplace policies on harassment, discrimination and retaliation must apply even to discussions that may have stemmed at some earlier point from political reporting, and may apply even to discussions on social media if they lead to some protected class impact or have the effect of interfering with your employee’s ability to perform his or her job.
As a general principle, private-sector employees have no constitutional right to free speech or political expression in the workplace. Yet, there are other areas in which protection has been afforded. First, employers should differentiate between employee political activity during working time and non-working time. With few exceptions, employers are generally free to regulate political activity and speech during work time and on company premises, or through the use of company resources, provided that the policy is neutral and implemented in a non-discriminatory way.
With off-duty political activities, many states have a “legal activities law” that prohibits an employer from firing, refusing to hire, or discriminating against an employee because of his or her “political activities” outside of working hours, off the company’s premises, and without the use of any company equipment or property. However, an employer may still regulate activities if they create a material conflict with the company’s trade secrets or other identifiable proprietary interests. Additionally, employers must ensure that their workplace policies addressing harassment, discrimination, cyber bullying and violence in the workplace apply equally to the political discussion.
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Second, employers should refrain from imposing, and perhaps even sharing, the political views of the company’s principals with its employees. For example, many state laws prohibit the use or threat of violence to compel an employee to vote for or against a person or proposition, any threat to tie compensation to an employee’s political opinions or actions, and posting any notice or statement that suggests a facility closure, work stoppage, or reduction in pay will occur if a ticket or candidate is elected or defeated. Simply, refraining from discussing the company’s political views and activities will minimize the number of employee claims of coercion or retaliation.
Third, employers should take great caution in attempting to monitor the political communications of their employees. Employers should also be sensitive to restrictions on “eavesdropping” on the conversations of others without the requisite consent, and also to the types of video monitoring that may or may not be appropriate in a particular jurisdiction.
Finally, employers should understand that many statutes impose affirmative obligations to permit such things as leaves of absences to vote and to engage in political rallies. In short, avoid making “trigger happy” decisions when it comes to regulating or disciplining for political speech or activities. That is not to say that certain workplace conduct cannot be regulated, but rather employers should step back and analyze the situation, even if briefly, before doing so. Particularly as things start to heat up between now and Nov. 8.