With the 18-month presidential campaign and several close races ready to be resolved on Election Day, the temptation to discuss political opinions and issues in the workplace is strong. While the potential for heated political discourse in the office can present challenges, HR may turn these into opportunities.
HR may become READY for the forthcoming election and the ensuing consequences by:
- Researching legal and policy information;
- Expressing the organization’s position;
- Acting in line with rules and policies;
- Disciplining when appropriate; and
- Yielding to common sense strategies.
As with anything political, the public relations impact of a misstep may be greater than the actual economic liability. HR should be proactive and strategic with respect to Election Year challenges.
Research Laws and Template Policies
An employer should research new and amended laws for their potential applicability to the workplace, and the possible adoption or enhancement of workplace policies. Workplace policies should not only follow federal and state law, but also advance organizational goals. For instance, an employer should also consider, from a business strategic perspective, if implementing certain policies that would follow neighboring jurisdictions would yield greater consistency or result in a competitive advantage.
Your organization may wish to review the following policies and their applicability to elections and political issues:
- Political activity policy;
- Off-duty conduct policy;
- Bullying policy;
- Social media policy;
- Computer use and email policy; and
- Workplace conduct and discipline policy.
Employee Rights Considerations
Employee rights vary with respect to issues that may arise during an election cycle. A private, union-free employer may be surprised to learn that a number of employee protections apply, and the breadth of those protections varies by state.
National Labor Relations Act. From a federal perspective, workplace policies should comply with the National Labor Relations Act (NLRA), which protects employees’ rights to protected concerted activity. For example, the National Labor Relations Board (NLRB), which is charged with enforcing the NLRA, has questioned broad workplace restrictions emphasizing “respect” as violating an employee’s right to discuss the terms and conditions of their employment.
First Amendment Concerns. The First Amendment protects against the government abridging the freedom of speech. These constitutional rights have been interpreted to have only limited application in private workplaces. In fact, most workplace rights regarding expression cover public employees, although even those may be limited for legitimate business reasons.
While a private employer may be on sound legal footing when implementing internal policies limiting political activities in the workplace, it should be prepared to explain the scope of protections to employees in a clear manner that addresses the employee’s concerns.
State Laws Protecting Off-Duty Employee Behavior. In some jurisdictions, employers engaging in disciplinary actions based on employee political activities may run afoul of state laws protecting off-duty employee behavior.
An employer should think twice before imposing discipline on an employee for not supporting a particular candidate. In addition to potentially being unlawful, using tactics that tend to shame employees into voting in a certain manner or to coerce them into participating in a political event may harm employee engagement and decrease overall productivity.
For example, if an employer is facilitating contributions for particular candidates, it should steer clear of distributing non-contributor lists at sponsored events.
Express Your Position
Once sufficient research has been conducted into applicable laws and what policies to adopt or enhance, an employer’s stance on political and related activities in the workplace should be clearly communicated. Supervisors and managers should be trained on these policies and be prepared to apply these directives to everyday workplace situations.
Act in Accordance With Ethics Rules, Work Rules and Workplace Policies
Executives, HR, managers and supervisors should practice what they preach. As part of that, management should reinforce workplace policy positions. Also, supervisors should be prepared to respond to employee questions.
If an employer has adopted policies limiting political activities during working hours in the workplace, then all employees, including managers, should comply with these directives.
If, on the other hand, an employer wishes to sponsor certain political activities in the workplace, then different sets of federal and state laws may apply. For example, if an employer is facilitating a political action committee, then it’s important that solicitations for employee contributions not be coercive. Best practices dictate that an employer:
- Avoid private requests for a contribution by a supervisor to a direct report. Group meetings are best when relaying this type of information;
- Refrain from making promises of enhanced benefits or other compensation when soliciting contributions; and
- Use a template or other form for communicating the information, preferably with a disclaimer stating that the contribution is voluntary and made without fear of retaliation.
Discipline When Appropriate
As workplaces have grown increasingly laid-back and relaxed, employees may be more comfortable and willing to engage in political banter.
While some conversations may result in food for business thought, many workplace political discussions have the potential to escalate, very quickly, to heated arguments. In addition, political activities conducted in the workplace during work hours could lead to productivity loss, co-worker resentment and decreased morale.
An employer should remind employees of the employer’s expectations while ensuring that employee rights are respected. If a corporate culture allows the most egregious comments or behavior to continue, then there could be a measurable impact on employee productivity, engagement and retention.
When it comes to political speech in the workplace, an employer should discipline for legitimate, business-related reasons. Employees should be disciplined in a consistent and fair manner. Some scenarios include the following:
- Workplace political discussions during a contentious campaign season may lead to co-worker bullying and harassment. To that end, employers may enforce existing work rules and policies that address bullying, harassment and computer use and communications (if the discussions were conducted online as well as in person).
- If an employee is volunteering for a particular candidate’s campaign, then those activities should be conducted outside of the workday, using the employee’s personal email accounts and hardware. The use of employer equipment and any workplace solicitations may and should be controlled by an employer.
- Depending on the issues involved in a political campaign, merely repeating some of the phrases that have become the subject of media focus and speculation may lead to a potentially hostile work environment. Retweeting a candidate’s post or sharing a supporter’s You Tube video that details inappropriate behavior could result in a violation of a code of conduct.
Of course, disciplining an employee with termination leads to additional business costs (such as recruiting and hiring for a replacement), or could maximize liability risks (if an employee’s rights were violated). The employer should balance progressive discipline with corporate objectives to achieve the best result for all involved.
Yield to Common Sense, Especially Post-Election
Elections provide excellent opportunities to discuss alternatives and possibilities at the organization. Ballot initiatives may provide an opportunity for creativity and strategy regarding workplace policies.
Therefore, HR must yield to common sense, and not passion, in assessing whether a change would help the business to move forward. HR should focus on developing new or existing competencies to respond to governmental and legislative changes, including:
- Business acumen, or understanding and applying information to contribute to the organization;
- Critical evaluation, or the ability to interpret information to guide business decision-making or recommendations;
- Responding to social expectations and public policy;
- Understanding and managing people; and
- Creating collaboration throughout the organization.
Although many in the media have argued that the current campaigns have not centered on policy discussions, some of the candidates’ policy stances, especially from down-ballot races, may inform employer choices on whether, and how, to address certain issues. For example, as California, Florida and Massachusetts grapple with ballot initiatives addressing marijuana use, employers in those states may consider a change to present policies. And with other states weighing minimum wage hikes – perhaps this is a time for review of compensation practices.
With respect to work rules violations, an employer should recognize the potential for growth: teachable workplace moments and sensitivity training may result from contentious discussions, and an employer may take this opportunity to continue to foster a tolerant and inclusive workplace culture.
It’s always important to emphasize respect, productivity and propriety. After all, the workplace holiday party – that always dependable prospect for bad behavior and breaches of decorum – is just around the corner.
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