By Rich Meneghello
The Daily Record Newswire
As the November election approaches, so too does the unavoidable political discourse. Invariably, the discussion reaches the water cooler, creating a politically charged environment potentially rife with disruption. Most people are accustomed to a measure of division between co-workers come election season, but this year could see a marked rise in workplace tensions due to a hotly-contested gubernatorial race, mid-term election fever and Tea Party dramatics.
Workplace friction caused by emotionally contrasting viewpoints often leads to a corresponding decline in morale. As distractions increase, productivity inevitably suffers.
Moreover, some individuals in election time step onto personal soapboxes to proclaim their views about a variety of subjects - including age, sex, religion, national origin and race - that can combine with politics to form a volatile cocktail that can tear into the fabric of any workplace. Innocently intended remarks directed at candidates on either side of the political fence could form the basis for allegations of discrimination and harassment.
Does an employer have the right to regulate political discussions on the clock? Can they be forbidden entirely? If so, what are the legal and practical concerns? Fortunately, private employers generally retain the right to maintain a cohesive working environment, and can restrict political discourse that threatens to undermine that environment.
The prevailing myth that employees have a right to “free speech” is just that - a myth. The constitutional right to freedom of speech does not extend to private employment, leaving employers relatively free to impose restrictions deemed necessary to maintain a productive, non-hostile working environment. Therefore, employers may generally regulate political expression as they would other forms of disruptive workplace communication.
Political discussion during working hours may be addressed, even in the absence of potentially offensive content. Under these circumstances, a proactive approach often can prevent heartache.
The good news is that lawsuits resulting from political activity and speech are rare, even in charged election years such as this one. While employers should be vigilant in addressing controversial subjects, the bigger problem may just be the inordinate time that employees spend talking about non-controversial topics.
If employees are spending more time on the clock discussing (even via e-mail) candidates’ platforms than on work assignments, then their attention should be refocused. This starts with a basic education on the distinctions between free expression and prohibited conduct. Proceeding directly to formal discipline may not always be necessary, but some form of counseling is typically in order.
To strike a proper balance between open dialogue and operational efficiency, I recommend that employers deal with the impact on productivity rather than the specific content of the underlying discussion. Also, monitor any subsequent exchanges, particularly in response to employee complaints, and strive to maintain consistency in policy application and enforcement.
Employers need to develop a consistent approach to dealing with solicitation e-mails sent out by employees, such as those who want to know if others want to join them for volunteer activities or campaign donations. Exposing company e-mail to such traffic may also require tolerance of union-related materials, so employers may want to prohibit all e-mail blasts not related to work.
Conversely, all managers should uphold a higher standard. They should avoid any implications that they are trying to advance their own political agendas while carrying out company business. Also, it’s generally not good form for a manager to belittle, denigrate or otherwise criticize a particular party or candidate. And of course, no one likes a sore winner — gloating over a candidate’s recent success is not the best way to lead a workforce.
Finally, request that managers keep their ears open around the water cooler for divisive subjects, and make sure they understand that political discussions are not to be treated any differently in regard to application of discipline or counseling.
Rich Meneghello, the managing partner of the Portland office of Fisher & Phillips LLP, is dedicated to representing the interests of management. Contact him at 503-205-8044 or rmeneghello@laborlawyers.com.
