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July 27 — The divisive rhetoric of the 2016 presidential election continues to put employers in a difficult position, as they try to determine when political discussions begin to hurt productivity and morale and when they should say enough is enough.
Employers should consider strategies that take into account employee morale, public perceptions of the company, and federal and state laws, Eugene Volokh, a professor of free speech law at the University of California Los Angeles School of Law, told Bloomberg BNA July 26.
Hostile speech can be considered harassment when it's based on race, religion or sex, but political speech is a gray area, he said.
Employers could increasingly find themselves in potential workplace harassment incidents where, for example, one employee states he agrees with Republican nominee Donald Trump’s stance on immigration, and an employee of Mexican descent takes offense, Volokh said. Current law is ambiguous on whether that situation would be a hostile environment, so employers must focus their policies and actions on the context of the political discourse, he said.
Employers should establish a culture that allows individuals to express their opinions straightforwardly without argument and with civility, Maria Greco Danaher, shareholder in the Pittsburgh office of Ogletree Deakins, told Bloomberg BNA July 27. HR needs to train employees to understand that they are allowed to say “I’m for Trump” or “I’m for Clinton,” but that problems arise when people try to force their views on others instead of simply discussing those views, she said.
The issue that immediately concerns many employers is the National Labor Relations Board position that employer policies to enforce civil behavior could violate the National Labor Relations Act by chilling concerted activity, Greco Danaher said.
The line established over the course of the NLRB’s decisions in the past can be “nebulous,” Greco Danaher said, and employers don’t want to be caught off guard with a lawsuit if they implement rules that call on employees to exhibit civil behavior. She advised employers to monitor NLRB decisions to determine what are acceptable employment policies.
Overall, however, Greco Danaher recommended employers err on the side of allowing individuals to express their thoughts and beliefs without putting any kinds of rules and restrictions on banter or frank discussion.
“The key to all of this is training of managers and supervisors to recognize when conversations are moving in a direction that could be problematic, and then choose a course of action,” she said. Managers have the option to de-escalate an interaction, impose discipline on employees or sit down with employees to work through an issue, Greco Danaher said.
Managers also should be taught not to overreact, she said. Ultimately, “they need to recognize problems before they actually turn into problems,” Greco Danaher said.
According to research released in June by the Society for Human Resource Management, 72 percent of 457 HR professionals surveyed indicated their organization discouraged political activities in the workplace.
Furthermore, about two-thirds (67 percent) reported that their organization didn't have a policy in place addressing political activities in the workplace.
“Politics may generally be a topic that a lot of people don’t talk about at work, depending on industry, career-type and professional setting,” Evren Esen, director of workforce analytics at SHRM, told Bloomberg BNA July 27. In fact, a lack of a formal policy can often mean that an HR department has not observed a need to have a policy addressing political activity and discourse, she said.
Companies with a formal policy probably had an incident that occurred in the workplace that led them to take that step, Esen added.
Moreover, this election cycle may only seem more volatile than years past, SHRM found. Seventy percent of respondents to the “Policies on Politics in the Workplace” survey perceived the same amount of volatility in the workplace during the current election compared with previous election years; about one-quarter (26 percent) perceived greater volatility.
SHRM also found that in the past 12 months, only 1 percent of organizations reported disciplining employees for violating policies pertaining to political activities.
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The SHRM survey findings are available at https://www.shrm.org/hr-today/trends-and-forecasting/research-and-surveys/Documents/SHRM-Policies-Politics-Workplace.pdf.
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
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