This is part of a series of articles by Wright Lindsey Jennings’ labor and employment team examining key trends for employers and the workplace in 2020. The series was featured in Arkansas Business.
Over the last several years, political discourse has really headed south, and this is increasingly causing problems in the workplace — from co-workers not wanting to work with each other to loud and disruptive arguments and even fistfights. According to a 2018 Randstad US study, 49% of employees in the United States enjoy discussing politics with other employees, but 55% of those same employees have witnessed “heated political discussions or arguments at work” leading to stress, anxiety and an overall negative impact on productivity.
An initial reaction many private employers have is to simply ban “political” discussions at work. But some political discussions among private company employees may be protected by the National Labor Relations Act. Even in a non-union setting, the NLRA “protects the rights of employees to engage in ‘concerted activity’, which is when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment” according to the National Labor Relations Board’s website. Some employee discussions that have a significant political aspect may also address the terms and conditions of the workplace. Examples for Arkansans could include discussions about raising the state’s minimum wage, protections for LGBTQ employees, or the impact of medical marijuana.
New guidance issued by the NLRB in mid-2018 attempted to balance the rights of employees to exercise their rights with the rights of employers to maintain discipline and productivity in the workplace. Workplace rules that are generally considered lawful by the NLRB include rules that prohibit “behavior that is rude, condescending or otherwise socially unacceptable”; “disparaging or offensive behavior”; and behavior that creates “discord with clients or fellow employees.” But employers still must be careful not to apply these rules to discipline employees for conduct that would be considered concerted activity.
So what steps can private employers take to minimize toxic political discussions at work without running afoul of the NLRA? Here are a few ideas:
1. Do you have policies on being professional and collegial? Do not allow “heated” discussions or yelling of any kind, and expect mutual respect among all employees. This rule on expected behavior also carries over to employee interactions online.
2. Do you have a policy on violence in the workplace? Heated discussions and even fights have broken out in some situations.
3. Your workplace is not where one employee should try to change the political views of others. Prohibit political ads or stickers, or outright political campaigning, during work hours. This can include prohibiting solicitation of campaign donations or the distribution of campaign materials during work hours. Be careful though — it is important to have a non-solicitation policy that is uniformly enforced.
4. Managers and supervisors should stay well above the fray — they have to be the adults in the room and set an example of professionalism. Taking sides in a political argument does not help.
5. Do not allow an employee’s legitimate political views to impact his or her pay or performance reviews — although how he or she expresses those views could have an impact.
6. Finally, have clear and well-publicized anti-harassment policies. Some topics — like immigration or even terrorism — can easily morph into a potential harassment claim. For example, in the course of a conversation, one employee might say to another, “All Arabs are terrorists,” which would certainly be offensive to many employees and could lead to potential national origin, race or religious discrimination claims.
One hopes that people are waking up to just how toxic political discourse has become and can simply agree to disagree. But until the pendulum swings back a bit, employers can and should take steps to ensure politics do not affect the jobs their employees have been hired to do. Get your policies in place and talk to your employees about them before we get deep into the 2020 election cycle.
Stuart Jackson has been practicing in the labor and employment field for more than twenty-seven years and is a partner on Wright Lindsey Jennings’ Labor & Employment Team. As of late, he has been focused on helping businesses prepare for medical marijuana and defending wage and hour collective/class actions. You can contact him at WJackson@wlj.com.