Politics in the workplace

Your employees, similar to the rest of the world, likely are riveted by one of the most hotly contested and controversial elections in U.S. history: the 2016 U.S. presidential campaign. Regardless of whether your employees are with Her or sharing Trump-isms, they almost certainly are talking about the campaign and also may be talking about their political beliefs and activities while at work. This can lead to a myriad of employment law nightmares for you.

Rather than waiting for issues to materialize (or escalate), ensure your workplace is ready to respond to thorny issues at the intersection of politics and employment law.

Why you need to act now

The 2016 presidential campaign has seen a litany of commentary by Republican and Democratic candidates and their supporters that illuminates why employers should be particularly concerned with politics in the workplace this election season. Donald Trump is loved and hated by the masses, and the following quote is an example of why he is viewed as such a divisive candidate:

"When Mexico sends its people, they're not sending their best. … They're sending people that have lots of problems, and they're bringing those problems with us. They're bringing drugs. They're bringing crime. They're rapists."

Supporters and critics of Democratic presidential candidates Bernie Sanders and Hillary Clinton also are causing trouble for employers. Gender-based critiques of Clinton by Sanders supporters may spawn animus among voters (and your employees). Indeed, according to the website Politico, Sanders supporters "harass female Clinton supporters online and accuse them of 'voting with their vaginas' and call them 'b*****s.'" Age-based and anti-Semitic critiques of Sanders by Clinton's supporters are equally concerning.

Given the sampling of the types of viewpoints and comments taking center stage during the 2016 presidential election, it is no surprise you may see an increase in workplace issues such as:

• Discrimination, harassment and retaliation claims based on political affiliation and activities
• Discrimination, harassment and retaliation claims based on gender, age, national origin, race, religion and other protected categories as a result of employees and managers espousing colorful political views
• Unfair labor practice charges based on restrictions to employees' Section 7 rights under the National Labor Relations Act (NLRA)
• Violence in the workplace
• Decreased employee morale and productivity

What you need to know

Take care when disciplining or otherwise responding to complaints stemming from an employee's politically-related statements or actions. Certain state laws provide significant protection to employees with respect to their political beliefs and activities in and out of the workplace.

Note some states prohibit discrimination against employees who engage in political activities (which can include the "espousal of a candidate or cause") related solely to off-duty political activity, or related to employees' political activity or affiliation (whether off-duty or not). (The September issue will contain part two of this article and provide specifics regarding state laws.)

Certain states prohibit employers from forcing employees to attend employer-sponsored political events; maintaining records of employees' off-duty political activities; restricting employees' off-duty use of "lawful products" (which can include social media platforms such as Facebook, signage, etc.); or coercing or dictating to employees how they should vote (which can include distribution of literature by an employer).

In addition, certain states have allowed wrongful discharge claims against employers that discharge employees for political views or activities.

If you attempt to limit or control employees' politically-related speech, be careful to comply with the NLRA, which guarantees employees' right to organize and bargain collectively with their employers and engage in other protected concerted activity. Specifically, exercise caution when attempting to limit or control employees':

• Political speech if it amounts to "concerted activity" that pertains to their working conditions
• Buttons or clothing displaying political messages if such messages are related to their working conditions (though certain exceptions do apply)
• Right to solicit support for political candidates in connection with their working conditions during nonworking time and to distribute political materials related to their working conditions in nonworking areas during nonworking time

Also beware of the numerous federal and state Equal Employment Opportunity (EEO) laws prohibiting discrimination, harassment and retaliation based on various protected categories that may be implicated by the presidential election (such as religion, race, national origin, gender, etc.). It is critical you take appropriate action to investigate and respond to EEO claims even if doing so requires careful planning and coordination to avoid political affiliation claims.

Of course, every workplace is different, and some employers may anticipate a higher likelihood of increased workplace violence as a natural result of an uptick in heated disagreements between co-workers because of politically-related speech. Such employers should be particularly careful to monitor workplaces for any sign of mounting tensions arising out of the political views and activities of their employees and take steps to alert the proper individuals internally (and, if necessary, externally) to prevent any violence at work.

Albeit not unique to this election season, also take care to comply with various state leave laws that provide time off for voting, service as an election judge and other election-related activities, all of which generally are deemed "protected activity" under pertinent laws. Such laws often prohibit interference with the protected activity as well as discrimination and retaliation.

Finally, plan to address workplace morale and productivity issues this election cycle. Business solutions to these issues can include a well-timed (likely temporary) increase in workplace perks (e.g., snacks and beverages, etc.); rewards for maintaining certain productivity goals (financial or otherwise); modifications to vendor agreements, delivery deadlines and quota requirements if slowdowns are anticipated; and an increase in workers' scheduled hours to ensure existing deadlines or quotas are met.

Five survival tips

As with any workplace issue, I encourage you to act deliberately and strategically to minimize liability and prevent workplace disruptions. The following five steps will help you survive this election season:

1. Work with counsel to determine what laws apply to your workplace and develop an action plan to ensure compliance (particularly important if you employ individuals in different states).
2. Draft (or update) relevant workplace rules and policies (such as limitations on the use of employer's equipment and email for nonbusiness use where permitted under the NLRA; restrictions on violence in the workplace; statements addressing nondiscrimination, anti-harassment and nonretaliation, etc.).
3. Adequately train managers to:
• Identify and address political speech that violates workplace policies and rules (such as hate speech) in a consistent, dispassionate and neutral manner to avoid claims from the offending speaker
• Appropriately handle and escalate to human resources any complaint of discrimination, harassment or retaliation based on a protected category (whether the complaint stems from politically-related speech or otherwise)
• Avoid participating in political speech or showing favoritism to like-minded employees
4. If appropriate for your workplace, create a plan for increasing employee morale and maintaining productivity this election season but resist the desire to encourage employees to discuss political views at work (for example, don't televise debates at your workplace).
5. Avoid the ostrich defense. The 2016 presidential election and related political activities and viewpoints have or will soon affect your workforce. Inaction can be costly.

A unique time

There is no question the 2016 presidential election is unique in its potential for giving rise to workplace issues. However, if you take the aforementioned steps, you will better position your workplace to handle such issues.

Although the makeup of your workforce may dictate the type of employment issues you experience, it is likely that, as a result of the election, your workplace will see an increase in some issues and may even be forced to grapple (for the first time) with other issues. Nevertheless, there is no doubt investing in workplace readiness efforts now will pay dividends in minimizing politically-related claims.

Gray I. Mateo-Harris is a senior associate in the Chicago office of international labor and employment law firm Ogletree, Deakins, Nash, Smoak & Stewart P.C.

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