Employers Should Defend Civility as the Midterm Elections Near

Allen Smith, J.D. By Allen Smith, J.D. October 30, 2018
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​Ahead of the Nov. 6 midterm elections, the nation is as divided as ever along partisan lines. Employers need to remind employees that they expect any political discussions at work to be civil.

Many political discussions are "extremely divisive in the workplace, reflecting our country's current polarized political climate," said Audra Jenkins, chief diversity and inclusion officer with Randstad North America, based in Atlanta.

Over half—55 percent—of 807 respondents of a Randstad survey conducted in August had witnessed heated political discussions at work, and more than a third—38 percent—had participated in them. Although 38 percent said they'd changed their opinions based on discussions with colleagues, 72 percent felt anxious when heated arguments occurred, and 44 percent said the arguments hurt their productivity.

38% of respondents said they have been in a heated political discussion at work.

Employers should have zero tolerance for incivility, said Johnny C. Taylor, Jr., SHRM-SCP, president and chief executive officer of the Society for Human Resource Management (SHRM), noting that incivility often leads to physical violence.

Differences of thought and opinion are a dimension of diversity, so employers should borrow from the diversity training playbook and call for inclusion and acceptance of differences when there are political conversations at work, he said.

The costs of incivility are too great to be ignored, Taylor noted: the loss of good talent, decreased productivity, lower morale, compromised employer brands and loss of business. The benefits of civility are not just higher productivity but greater engagement.

Tone Matters

Some employees are under the misimpression that they have a First Amendment right to say whatever they want in the workplace, which isn't true, as the amendment doesn't apply to the private sector. And some employees believe they can talk about politics in whatever tone they choose. It's troubling, Taylor said.

"Bullying is bullying," he noted, and shouldn't be tolerated. Employees are too valuable a resource to have them not bring their best selves to work because of a harassment-filled environment, he stated.

The Equal Employment Opportunity Commission has recommended civility training as a way to prevent workplace harassment.

To facilitate more civil conversations, HR should encourage employees to have discussions that enrich relationships with co-workers, according to Stacey Engle, executive vice president at Fierce Conversations in Seattle. If conversations aren't building up the work relationship, employees should tell their co-workers they're not comfortable with the discussion. If the other employees persist in talking about that subject, HR will need to get involved.

"If conversations are respectful, they shouldn't be discouraged," said Katina Sawyer, a professor with the George Washington University School of Business in Washington, D.C. "When employees feel that they can't be transparent with one another, interpersonal and trust-related issues might arise. But this means that organizations need to be clear that any kind of disrespectful conversation won't be tolerated."

It's impossible to completely prevent political discussions in the workplace, noted Aaron Warshaw, an attorney with Ogletree Deakins in New York City. "Healthy discourse among employees with different viewpoints can, in fact, even be productive as long as it does not get out of hand."

Comply with the NLRA

Employers should adopt and periodically recirculate policies on respectful speech and behavior in the workplace, and the policies should also comply with the National Labor Relations Act (NLRA), said James Paretti and Michael Lotito, shareholders in Littler's Workplace Policy Institute in Washington, D.C., and San Francisco, respectively.

Section 7 of the NLRA provides that "employees shall have the right … to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." The "concerted activities" that Section 7 protects are actions that involve work terms and conditions, noted Katherine Sandberg, an attorney with Fisher Phillips in Sacramento, Calif.

[SHRM members-only toolkit: Complying with U.S. Labor Relations Laws in Nonunion Settings]

The NLRA applies even if the workforce isn't unionized, and it applies to employees' communications on social media. So be cautious that any civility rules are not so sweeping that they prohibit the kind of activity that the NLRA protects, such as the discussion of wages or working conditions, she cautioned.

But the National Labor Relations Board general counsel has given employers more leeway than they once had, writing in a memo earlier this year that employee-handbook civility rules generally will be held to be valid under the NLRA. The memo stated that lawful civility rules might provide, for example, that "behavior that is rude, condescending or otherwise socially unacceptable is prohibited."

Apply Civility Rules Evenhandedly

Consistency is the key in enforcing civility rules that comply with equal employment opportunity laws, said Jessica Travers, an attorney with Akerman in Jacksonville, Fla. She noted that employers don't have to tolerate threats of violence or intimidation, or derogatory comments based on race, national origin or gender just because they occur during a political discussion.

Dana Wilkie contributed to this article.

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