Employer’s Election Year Survival Guide


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I am a fan of a survival guide. “How to Survive Law School,” “How to Buy a Car,” “How-to Survive the Chick-Fil-A’s Drive-Thru Line at 11:30 a.m.” They write it; I read it. Given the never-ending primary election season, following by the fall Presidential election, many of my clients are in need of a guide to survive the next few months, which has been unlimited in its ability to generate water cooler discussion. To that end, I give you my top five suggestions for surviving election season (and avoiding litigation):

1. Supervisors – Be Switzerland.

You know what I mean, be neutral. Don’t chose a side. Common sense says you should avoid discussing money, religion, or politics in mixed company. I would say that a synonym for “mixed company” is the workplace.

Politics is a personal, subjective topic that raises many issues connected to employment laws. Political discussions invoke a myriad of protected topics – commentary on race, sex, immigration, and religion often pepper political rhetoric.  It is best for those in a position of power to remain neutral rather than face claims of unequal treatment in violation of anti-discrimination laws. Repetition of positions on religion, immigration, woman’s rights, etc. could lead to claims of a hostile work environment based on protected classes. My recommendation, avoid these sensitive topics and redirect the conversations to more universally loved topics – like Downton Abby.

2. Remind Employees of Pertinent Workplace Policies.

Election season is the perfect time remind employees of your business policies. Dust off that Employee Handbook and refresh your staff’s recollection of policies against harassment, discrimination, and retaliation. It is also a good time to remind employees of dress code policies and social media policies. While you cannot prohibit your employees from campaigning in their spare time, you can prohibit solicitation of campaign materials at work, as you would any other type of activity that detracts from the job at hand. Furthermore, while employee Facebook posts after-hours are generally their own business, remind staff that use of Internet during working hours is prohibited.

3. Responding to the Inevitable “Free Speech” Reply.

Contrary to what employees sometimes think, there is no absolute right to “free speech” in a private workplace. The First Amendment’s free speech provision applies only to government censorship of speech. However, even if you do not operate a union workforce, remember that Sections 7 and 8 of National Labor Relations Act applies to your business. The NLRA protects speech, including political speech, that is aimed at improving pay and workplace conditions. To that end, a group discussing health care benefits could be having a protected conversation.

4. Give Employees Time-Off to Vote.

Allowing your employees to vote on Election Day is not just courteous, it is legally required in Tennessee. State law requires employers to give employees paid time off from work to vote (in an amount not to exceed 3 hours) if the employee begins their work day less than 3 hours after the polls open and finishes their work day less than 3 hours before the polls close. The employer may require the absence to be requested no later than 12:00 pm on the day of the election and may further specify the hours during which the employee may be absent to vote.

5. Consistency is Key.

Inevitably, the topic of politics will arise in the workplace. It would be unrealistic to think otherwise. In the end, the goal is to balance political expression with sensitivities of employees, as you would with any workplace dialogue. Be consistent with employees – supervisors, don’t let some employees champion your candidate of choice, while reprimanding those in support of the opposing party under the guise of workplace policies. Such unequal behavior invites complaints. And, remember, if complaints are made, investigate them promptly and thoroughly.

If you have any questions on the above or find yourself facing an election season conundrum, please do not hesitate to contact me with questions.