In this episode of The Workplace podcast, CalChamber Executive Vice President and General Counsel Erika Frank and employment law expert Jennifer Shaw discuss how employers can navigate the election season and ways to handle political discussions in the workplace.
It’s election season and whether it’s at the company’s water cooler or in a Zoom call, political discussion is spilling over into the workplace, Frank says. And because many employees are now working remotely, discussion occurs in ways that are not always visible to the employer.
“It’s everywhere,” and no matter which way someone leans politically, people feel very strongly about their views, Shaw adds.
So how, Frank asks, can employers provide guidance to employees about discussing politics at work?
As employers consider their options, Shaw recommends that they think about their workplace culture and what type of conversations employees were having before the COVID-19 pandemic. How active were political discussions in the workplace before all of this happened? Determining the workplace culture will help employers figure out what is going on with employees and where to draw the law, Shaw explains.
Moreover, employers should be aware that sometimes political discussion cannot be restricted.
“Employers need to realize that it’s the type of workplace you have that dictates what you have to permit or what you can stop,” she tells Frank.
Public sector employers, or employers with a union or collective bargaining agreement must grant workers more flexibility and leeway in engaging in political conversations because political speech is protected under the First Amendment guarantee of free speech.
Private sector employers may prohibit their workers from talking about politics, the presidential debates or what the President is or is not doing. But Shaw cautions that these rules are very hard to enforce, especially since employees are working from home, and can communicate with each other directly via Facebook or through text messaging.
If an employer does decide to restrict political discussion, they should keep a few things in mind.
First, if a topic is an issue of public concern, the discussion cannot be restricted, Shaw tells listeners. For example, she says, it’s hard to restrict conversations about President Donald Trump contracting COVID-19 because at the end of the day, he is our country’s leader.
Second, employers can ask to balance employee productivity and speech. The courts have ruled that free speech in the workplace is not an “unfettered right,” and employers can ask workers to discuss politics only while on their meal and rest breaks, Shaw points out.
Last, banning political discussion must be content neutral, Shaw says. For example, employers cannot ban talk about President Trump but allow conversations about Democratic presidential nominee Joe Biden, and vice versa.
Lead by Example
A better alternative to prohibiting political discussion in the workplace altogether is to have a company’s leadership — managers, supervisors and executives — lead by example by not talking about politics, Shaw says. The leadership team can set the tone of the workplace environment by not engaging in political discussion, and demonstrating through their actions that one’s personal views should not get in the middle of what needs to be accomplished in the workplace.
Another best practice that employers can adopt is to empower their workers by letting them know that it’s acceptable to set personal boundaries and tell their coworkers that they do not wish to talk about politics. Just as the ability to speak is protected in California, Shaw explains, employees also have the right not to be spoken to about these things.
Oversight of political conversation can be very difficult, so it’s important that employers have a complaint process in place in case a conversation escalates or goes beyond what the company’s leadership team has set down in policy, Frank says.
“One of the things that every employer should have is an open-door policy where people can come in and complain about something that is not just equal employment opportunity-related, not just about harassment, discrimination and retaliation,” she says. “It’s really important for someone high up in the organization to say, ‘hey, we don’t want you to feel uncomfortable for any reason.’”
Communicating this is especially important in places where a majority of employees lean the same way politically, and some employees feel as though they are part of a minority. It is important to protect those in the minority as much as everyone else, Shaw stresses.
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