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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 2024, authored by attorney Daveante Jones. The series was featured in Arkansas Business.
Political campaigns are in full swing with primary and general election season upon us — that means discussions about politics in the workplace are almost inevitable.
As employers balance their need to efficiently operate their business with employees’ rights related to exercising political beliefs in an effort to minimize toxic political discussions in the workplace, staying up-to-date on the legal landscape, including relevant state laws and recent changes to workplace standards under the National Labor Relations Act (NLRA), is very critical.
Prohibiting political discussions in the workplace may sound like the best approach, but employees have a number of rights under the NLRA that say otherwise. In both union and non-union settings, employees have the right to engage in “concerted activity” for their mutual aid or protection regarding terms and conditions of employment such as wages, benefits, safety concerns and thoughts on disciplinary action from their employer.
Politics today involve a number of topics that might spark discussion highlighting terms and conditions of employment such as access to healthcare related to abortions, the right to work and union organizing, religious expression, minimum wage, protections for LGBTQ+ employees, or the legalization of recreational and medical marijuana.
In years’ past, a primary recommendation for employers to minimize the distractions political discussions in the workplace may cause would have been prioritizing the administration of policies addressing civility or professionalism in the workplace. The National Labor Relations Board’s (NLRB) Stericycle, Inc., decision in August 2023 may have turned that recommendation on its head.
Generally considered to be lawful by the NLRB under an employer-friendly standard during the prior presidential administration, such policies are now unlawful according to the NLRB, if an employee could “reasonably construe” it as restricting conduct related to engaging “in concerted activity” for employees’ mutual aid or protection regarding terms and conditions of employment.
Another general workplace policy potentially impacted by this employee-friendly approach is employers’ restrictions surrounding solicitation in the workplace. Combine these things with the NLRB’s May 2023 decision in Lion Elastomers, restoring increased legal protection for workers who engage in derogatory language — including profanity and even racial slurs— while speaking out against workplace conditions, the elements for the perfect storm of politics in the workplace are all there.
Not only that, there are a number of non-NLRA federal and state laws that prohibit interference with employees’ exercise of political beliefs. For instance, multi-state employers operating in states like California, Colorado, Missouri, Nebraska, Texas, Tennessee, and South Carolina have to be sure not to take any adverse action against employees that could be considered to have been taken because of an employee’s political opinion or exercise of political rights and privileges.
Understandably, all of this can be overwhelming. So long as employers are thoughtful and intentional in implementing workplace policies to minimize toxic political discussions at work, however, the risk of running afoul of state and federal law decreases.
Some tips:
- Remember the priorities. The goal should not necessarily be staying away from having a business lean one way or another on a political issue but achieving an efficient operation with minimal disruptions and distractions while remembering employees’ rights related to exercising political beliefs.
- Identify your approach. The best approach may be to preach tolerance and respect for differing political views while emphasizing inclusivity and collegiality.
- Remind managers and supervisors that they are people leaders. They have to set the example of professionalism and be the adults in the room.
- Be clear in your communications. Circulating a memo with details about early or absentee voting or time off procedures for voting may be okay but communications involving rewards and benefits that could be interpreted as an effort to influence employee votes are likely unlawful.
- Avoid disruptions during working time in work areas. Uniformly enforce any non-solicitation policies prohibiting political ads or stickers, political campaigning, collecting campaign donations or the distribution of campaign materials during working time.
- Do not allow political views to impact terms and conditions of employment. An employee’s legitimate political views should not impact his or her pay or performance reviews.
- Have transparent and easy-to-follow anti-harassment policies. Certain topics, such as immigration or religion, can be extremely volatile. Having clear examples of harassing or intimidating behavior may ensure that employees avoid inappropriate comments and conversation. In the event it cannot be avoided, clear reporting mechanisms can lead to more prompt action in response to the inappropriate behavior.
Toxic political discussions in the outside world should not discourage employers from taking steps to ensure politics do not impact the efficiency of the business’s operations.
Being thoughtful and intentional in taking steps to implement policies to maintain an inclusive and considerate workforce are essential to avoiding disruptions.
Daveante Jones is a labor and employment attorney at Wright Lindsey Jennings in Little Rock who focuses on helping employers navigate day-to-day employment issues related to discipline, leaves and accommodations, administration of other workplace policies as well as managing investigations and lawsuits that may arise.