Here's the scene: You're an HR professional, and you realize the 2022 midterm elections are less than a month away. You start thinking about how you can prevent the great political divide from becoming a great workplace divide. As you cogitate, you notice a sales employee wearing a button in support of her preferred political candidate.
You ask her to remove the button because you have customers with diverse political views. She says no, promising to file a case with the Supreme Court because you are violating her First Amendment rights. Note to SCOTUS: We hope you enjoy her as much as we do.
"Well," you tell her, "First Amendment restrictions do not apply to private employers. The First Amendment restricts only government action." She says you are "so wrong," but complies.
You continue down the hallway and see two employees wearing buttons referencing two different political issues:
- One employee's button encourages employers to cover abortion services under their group health plans.
- The other employee's button calls for greater border control to preserve U.S. jobs.
Thinking of the First Amendment, you tell both employees, "Off with the buttons." And the National Labor Relations Board (NLRB) responds, "Off with your head!"
If political buttons relate to terms and conditions of employment, they may be protected under the National Labor Relations Act (NLRA). Indeed, the current general counsel of the NLRB has issued an advice memo on this issue, so we know it is top of mind for the agency.
You go to your office, and you hear two employees fighting over the election. Neither can believe their colleague would consider voting for the other candidate. Time to play referee. You focus on the disruption caused by the fight without regard to the content of their argument, since the NLRB likely would allow employers to focus on the disruption, if substantial, even if the issues discussed were work-related.
You go back to your office and close the door. The phone rings. A manager asks, "If I allow an employee to solicit for one candidate during his working time, do I have to grant equal access to another employee soliciting for the other candidate during her working time?" You reach into your pocket and take a pill. (Yes, it was lawfully prescribed after the last holiday party.)
Political affiliation is not considered a protected group by federal law or by most state and local laws. But forget the law; you don't want to alienate a sizable portion of your workers, customers or business partners. However, allowing solicitation uniformly is not the answer to this question. A uniform exception to your no-solicitation rule during an employee's working time would allow employees to solicit uniformly for unions during their working time.
After you talk with the manager, he asks you, as a friend, who you favor in the Senate race. You consider changing the topic to something less controversial.
Emotions are running hot, and they will only get hotter. When the election is over, you need to work together. People often perceive attacks on their favored candidates as attacks on themselves. So respond to the manager only if you have a strong relationship that is beyond merely professional and you are confident you both can survive knowing you may vote differently. And always consider your power; that may affect how your comments are perceived.
You breathe deeply and begin to relax until you hear an employee making discriminatory comments about a protected group. Now you can't be neutral. If bias is involved, you cannot put up with it. You must respond proactively to disparaging comments about Venezuelans, Evangelical Christians, Black women, white men or any protected group. If you are in a position of power, to ignore is to condone.
One of your colleagues is concerned that the political talk at work is becoming increasingly divisive even where it is not discriminatory. Are there any guidelines that can be developed? Sure.
For all employees in general, as well as HR and other leaders in particular, there is a big difference between stating one's political views and attacking those with opposing political views. For instance, let's take an easy example to the extreme, knowing most cases won't be as obvious: "I support [X]" versus "You would have to be a [insert insulting word] to support [Y]." Generally speaking, HR should allow the former and take appropriate corrective action with regard to the latter (not based on political view, but on how it was expressed).
There also is a big difference between stating one's views in a calibrated tone versus in an inflammatory way. Again, let's take an easy example to the extreme. "While I appreciate others have different views, I believe … " versus "You would have to be a [insert insulting term] not to support … " And, again, generally speaking, HR should allow the former and take appropriate corrective action with regard to the latter.
Soon the election will be over, and you can return to the halcyon days of the holiday season and all the workplace issues that go with it. Then you can refill your prescription.
Jonathan A. Segal is a partner at Duane Morris in Philadelphia and a SHRM columnist. Follow him on Twitter @Jonathan_HR_Law.