Shari’s Solutions: Can we prohibit political discussions at work in this heated election season?

Advice on all things HR from Shari Lau, SHRM-SCP, SHRM’s knowledge manager.
E-mail your questions to AskShari@shrm.org.

By Shari Lau Jun 1, 2016
LIKE SAVE PRINT
Reuse Permissions

Office politics. Illustration by James Smallwood.

In many cases, yes. But you might want to consider whether that’s worth trying to police. After all, these conversations are going to take place whether you ban them or embrace them.

If you’re tasked with recommending an organizational approach or enforcing a policy already in place, you should know how federal and state laws affect such discussions as well as your ability to intervene.

No federal statute protects private employees who want to express their political opinions at work. The right to free speech under the First Amendment of the U.S. Constitution only guards against government censorship. So while public employers must be aware of their limitations, private companies have no such obligations under the amendment. Therefore, when Joe Employee says he has the right to free speech at work, you can confidently tell him otherwise.

However, there is a federal law to consider when politically based chats turn into group discussions on the terms and conditions of employment, such as health care benefits. The federal National Labor Relations Act (NLRA) guarantees both union and nonunion employees the right to “protected concerted activity,” meaning they can discuss employment conditions among themselves freely, even passionately, and employers cannot quell such dialogues or take adverse actions against the employees. While you can limit such discussions to the employees’ own time, know that their lunchroom conversations, after-work talks and social media postings could be protected under the NLRA.

Only a few states provide safeguards for workers expressing political beliefs, and most of those protect only an employee’s right to pursue legal off-duty political activity. Oregon offers more protection, though. The state’s 2009 Worker Freedom Act prohibits employers from forcing employees to attend political meetings and from distributing political communications.

So, where state law allows, employers can hold mandatory political meetings and distribute politically based communications to their employees. The U.S. Supreme Court in its 2010 decision in Citizens United v. Federal Election Commission lifted restrictions on financial contributions that corporations and unions can make to support political advertising or issues as long as they don’t contribute directly to a candidate. The ruling gave birth to “Super PACs” (political action committees), through which companies can indirectly support candidates or issues.

The decision also removed limits on employer communications with rank-and-file employees regarding an organization’s political leanings. It means that employers are allowed to communicate their political beliefs directly to employees and to require them to attend meetings or other political activities. Previously, employers could only require managers to do so.

So, if your employer wants managers to hold mandatory political meetings with employees who then cry foul, you can cite the Supreme Court’s decision where state law allows it.

On a final note, this year’s harsh campaign rhetoric in particular could prompt negative comments regarding women, religion and national origin, so consistently enforcing your existing anti-discrimination and anti-harassment policies—and perhaps conducting some timely retraining—will serve you well.


 

What do we do with an employee who eats loudly at her desk?

Celery, chips, bubble gum. Have these disruptive intruders shown up in employee complaints? Mark decides to start eating healthier, brings his bag of carrots to work and happily chomps on them all day long. Gary, sitting in the cubicle next to him, considers this to be as maddening as a ticking metronome and calls you to complain about the offending rabbit food. What should you do?

As silly as this complaint may sound, there’s more to consider than you might think. Employers can generally decide whether to allow or prohibit food at workstations, assuming there are no medical accommodations to consider. Most companies prohibit employees from eating at their desk only if they sit in a spot visible to the public, such as a reception desk, where it would present an unprofessional appearance. Others might ban food in work areas where it would be unsafe, such as in a laboratory.

Some employers might also have an office or cubicle etiquette policy that addresses unprofessional or otherwise disturbing noises (such as crunching or chewing food constantly), which can be referred to in such situations.

However, if a loud chewer claims to have a medical condition and requests an accommodation, you may have few options. In any organization covered under the federal Americans with Disabilities Act or state disability discrimination laws, HR should have an interactive discussion with the employee to determine what can reasonably be done to accommodate him or her.

And it’s possible that the complaining employee needs a medical accommodation as well. For example, he or she might have a condition called misophonia, also known as selective sound sensitivity syndrome. Individuals with this disorder are bothered by certain sounds, including common noises that most of us wouldn’t notice. Their reactions can range from increased anxiety to panic or rage. To address this issue, once again offer reasonable accommodations, which might include relocating an employee’s desk, allowing telecommuting or providing noise-canceling equipment.

Whatever the situation, handle it with sensitivity. People often have strong feelings about eating. They might be dieting, or they might have food allergies or a food addiction. And they may be offended that their employer is trying to govern how and when they eat. Try to keep the conversation to the specific behavior that is not acceptable, and don’t let it feel like a personal attack on an individual’s choices or lifestyle.


 

Can an employer limit the use of a foreign language in the workplace? ​

The United States doesn’t have an official language, yet many employers and employees across the nation believe that only English should be spoken in the workplace. Maybe you’ve heard complaints from workers who believe that their colleagues are talking about them in other languages to exclude or annoy them. They complain that it makes them feel uncomfortable.

Under both federal and state anti-discrimination laws, national origin discrimination in employment is prohibited. For that reason, you can’t ban other languages without a true business need to do so.

However, you can have nondiscriminatory English-only rules that apply to specific circumstances in the workplace, according to the U.S. Equal Employment Opportunity Commission. These circumstances generally relate to safety and the efficient operation of the organization. For safety reasons, it is permitted to require that English be used during emergencies or when performing job duties in areas where there may be fire or a potential for explosions. However, casual conversations that happen while employees are not performing job duties can’t be limited to English.

In terms of efficient operation of the business, a rule that English is to be used with customers or clients who speak only English makes sense, as does requiring English to be used during collaborative projects with co-workers. Again, when not working on such projects and certainly during breaks, English-only would not be deemed a business necessity.

So what about those employees who feel they are being talked about in other languages? Your diversity training should encourage respect for those who speak more than one language and should help create an awareness that people may speak another language to relax or feel closer to their heritage. This is just as natural as English-speaking Americans on assignment in another country enjoying conversations in their native tongue rather than always using a secondary language. Managers should fully support the employer’s policies on language use and ensure that no discrimination takes place within their purview.

LIKE SAVE PRINT
Reuse Permissions

MEMBERSHIP

Become a SHRM Member

Join/Renew Today

Job Finder

Find an HR Job Near You

SPONSOR OFFERS

Find the Right Vendor for Your HR Needs

SHRM’s HR Vendor Directory contains over 3,200 companies

Search & Connect