By Garrett Kamen, Associate, and Kevin Troutman, Partner, Fisher Phillips
Today, it is more important than ever that businesses proactively manage their work environment to protect against the many issues that can occur when employees talk politics in the workplace. And, according to the National Bureau of Economic Research, there is a relationship between our physical well-being and election season. Regardless of what side of the political aisle they fall on, some of your employees are going to be passionate and outspoken about their political views. So how should your healthcare organization respond when employees express particularly enthusiastic support for or disparage, a candidate? Or what if employees voice strong political opinions to coworkers with differing views, and the discussion escalates into a heated debate? Before answering these questions, you must first understand the risks involved when employees bring politics into the workplace.
Risks of Political Speech in the Workplace
Political discussions at work can affect productivity, and morale, and become an unwelcome distraction. What may begin as a polite expression of views can quickly turn into a heated debate. Individuals engaged in these discussions also run the risk of making comments and behaving in ways that may be considered unprofessional, hostile, or even discriminatory toward their coworkers. The problem has become even more pronounced in the remote work environment where employees often interact only through electronic means (rather than in-person), making it harder to read nonverbal cues that perhaps the conversation is veering into unsafe territory.
Discussions concerning a political candidate or the candidate’s stance on a protected class, for example, can increase the risk of a discrimination or retaliation claim under federal or state law. For example, imagine one of your supervisors says something like, “Biden is too old to be president,” or “a woman should never be vice present,” or “more governors should send immigrants crossing over the Texas border to Massachusetts, that’ll show ‘em.” An older employee who is later terminated may point to the first remark as evidence of age discrimination. A woman passed over for a promotion may bolster a gender discrimination claim with a comment about Kamala Harris. The comment about immigration could support a race or national origin discrimination lawsuit.
These examples illustrate how quickly a political discussion can turn sour, leaving the business exposed to a discrimination or harassment lawsuit. An unfortunate fact that often finds a company embroiled in litigation years after the politician du jour giving rise to the comment is voted out of office. Even if it doesn’t turn into a lawsuit, it can still create an unpleasant work environment for employees, which can turn an otherwise pleasant workplace into a toxic environment.
How to Respond to Employees Who Engage in Political Discussions in the Workplace
In most states, employment is “at will,” meaning employees can be fired at any time for any reason, so long as the reason is not illegal. Although some states and local governments offer some protection to employees involved in politics, most employers have the legal right to fire and discipline employees for engaging in political activity or expression at work.
Contrary to popular belief, the First Amendment to the US Constitution, which guarantees freedom of speech and association, doesn’t actually protect the curbing of political speech by private employers. Most private sector businesses can, therefore, lawfully terminate or discipline employees for expressing their political beliefs at work unless a state or local law prohibits it.
However, the National Labor Relations Act (sometimes referred to as the NLRA) protects employees who engage in “concerted activities” for their “mutual aid or protection,” even if their workplace is not unionized. If employees discuss politics in relation to workplace conditions, for example, that speech might be protected under the NLRA. For example, if an employee shares the news that a certain candidate pledged to raise the minimum wage, that conversation may constitute protected “concerted activity.” Therefore, given how quickly a political discussion can turn into protected speech, healthcare organizations need to be particularly careful and assess the risks before taking an adverse employment action based on potentially protected speech.
Although federal antidiscrimination laws don’t include protections for employees who engage in political expression, they do prohibit discrimination based on race, color, sex, national origin, religion, age, and disability. And other statutes, such as OSHA, protect employee “speech” that is undertaken to report health and safety violations in the workplace. Moreover, some state laws and local laws do provide additional protected classes, which may include things like political affiliation.
Finally, even if political discussions are not protected speech, completely banning all discussions about politics at work can affect employee morale and can be difficult to enforce consistently.
A 5-Step Election Solution
Your healthcare organization should consider taking the following steps to minimize risks and ensure harmony in your workplace.
First, be aware of the applicable laws in the states and counties where your company operates and, perhaps, more importantly, these days, what laws apply to your location(s). Even though federal law doesn’t include protections for employees who engage in political expression (outside of expressions protected by the NLRA), some states and counties do have laws protecting employees from adverse employment actions because of political activities, expressions, and affiliations. Complicating this assessment for even the most diligent company is the fact that these laws can vary widely from town-to-town, county to county, and state to state.
Second, review and, strengthen policies governing workplace behavior. Ensure that prohibited conduct and consequences are clear. If you have employees in multiple states, you must carefully craft your policies, because it is very possible what is allowed in one location, is prohibited in another.
Third, remind all employees at all levels of your policies on workplace behavior and equal employment, anti-discrimination, and anti-harassment. Line up additional training to reinforce your message about appropriate behavior at work and to remind employees how to go about raising concerns should they arise.
Fourth, ensure that your policies are enforced consistently. Inconsistent enforcement is a surefire way to increase the risk of a discrimination or harassment claim.
Fifth and finally, create a plan to address possible heated political discussions among workers. The plan should include separate training for your managers and supervisors so they can be prepared to identify and address discussions and conduct that could be considered bullying or harassment. Managers and supervisors should know not to ignore such behavior. Instead, they must be prepared to take prompt steps to address these situations.
Flexibility is Key
It is important to remember that people are enthusiastic and emotional, especially when it comes to elections. Sadly, there is no one-size-fits-all solution when your employees bring this particular passion into the workplace, and even the best-laid plans can’t prepare you for every possible situation. However, clear expectations and well-trained leaders should go a long way in reducing legal risks.