But the freedom to discuss and debate politics is what makes America great, right? Not in the workplace, experts say. “A heated debate about a candidate’s stance on immigration may be construed as evidence of national origin discrimination,” says Marian Zapata-Rossa, partner at Quarles & Brady LLP. “Discussions about police brutality could develop into a racially charged hostile work environment. Even seemingly innocent John Balitis discussions about political issues can rapidly turn into heated arguments that interrupt an employer’s operations.” The political and social landscape of 2016 — fostered by political newcomer Donald Trump’s unabashed blustering — has created more workplace interruptions than most other election years. About 25 percent of human resources professionals say tension, hostility and arguments about politics among employees is more prevalent than during previous elections, according to a recent survey by the Society for Human Resource Management. Beyond political posturing and bickering, political talk in the workplace can become problematic from a legal standpoint, experts warn. “Even at its most benign, it can make employees uncomfortable,” says Kent Brockelman, managing partner at Coppersmith Brockelman. “It can be divisive and lead to morale problems. In more extreme versions, it can lead to, or even support, legal claims from employees against employers.” While employers can’t ban political discussions, hostility and workplace chaos is not conducive to productivity or profitability. In an effort to maintain a calm workplace, what can employers do to calm the potential political storm? “As a general rule, private sector employers may impose broad restrictions related to political discussions in the workplace,” says Stephanie Fierro, a partner at The Frutkin Law Firm. “Employers can restrict political discussions during work hours or restrict the disbursement or display of political material, when such restrictions are uniformly applied. But, employers must be mindful of the National Labor Relations Act (NLRA).”
What can you do?
In Arizona, as in most states, employers have significant leeway to implement policies governing employee conduct. “Arizona law would not prevent an employer from implementing a rule prohibiting ‘excessive’ or ‘disruptive’ political talk in the workplace, or even prohibiting any political discussions at all,” says Don Johnsen, shareholder at Gallagher and Kennedy. A private employer generally is free to regulate political speech in the workplace unless the employer operates in a state or city that specifically protects employees against discrimination because of political expression, or the employer is a party to a collective bargaining agreement that includes the same protection, according to John Balitis, director at Fennemore Craig. “There is no federal law that specifically protects employees from discrimination or retaliation because of their political activities, affiliations or expressions,” Balitis says. “And the First Amendment largely is inapplicable in the private sector as it only protects a
Kent Brockelman
Don Johnsen
Joseph T. Clees
Stephanie Fierro
Shawn Oller
Marian Zapata-Rossa
It can be divisive and lead to morale problems. In more extreme versions, it can lead to, or even support, legal claims from employees against employers. person’s right to free speech from government interference, not from interference by anyone else.” Here are some other things Joseph T. Clees, shareholder at Ogletree Deakins, says an employer CAN do to limit political disharmony in the workplace: • An employer can clearly communicate general expectations and foster a culture of mutual respect and understanding. • An employer can establish a policy reaffirming that work time is for work and, consequently, political speech at work is only permissible at a designated time and place (lunch breaks, rest breaks, etc.). This minimizes disruptions, reduces distractions and encourages productivity. AB | September- October 2016
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