Turn on the news, open up the newspaper, or access your social media feed and you are bound to be bombarded with news regarding the 2016 presidential election. No election has garnered as much interest or impassioned the electorate in years. No doubt politics has crept back into the workplace as a popular water cooler topic. Long after campaign fever has faded, the price for not recognizing the dangers of political discourse in the workplace could prove a headache for employers.
The tone and rancor of this election poses particular risks. Political speeches have frequently touched on religion, national origin, and race. Gender has also loomed large with the first female presidential candidate. Repeating comments or views espoused by candidates that implicate protected characteristics can quickly morph into the areas of harassment or discrimination. The Equal Employment Opportunity Commission has noted that managers and supervisors who learn about objectionable workplace conduct based upon a protected characteristic are responsible for taking steps to correct the conduct. This means if a manager or supervisor hears or learns of comments that might be deemed offensive, even if those comments merely repeat what a presidential candidate has said, action must still be taken to eliminate such language in the workplace. Often, it will be sufficient to remind the employees involved that while they feel strongly on particular issues, others may not share their view and may feel uncomfortable; but depending on the circumstances and the nature of the employee’s speech, more serious corrective action may be required. Regardless, employers will want to make sure their handling of an employee’s expression of political views is handled consistently and uniformly for all employees and for all political views. As the election approaches, employers may want to hold a refresher course on anti-discrimination and anti-harassment training, or at the very least remind employees of the company’s discrimination and harassment policies.
Lawsuits are even more likely in California. The California Labor Code makes political affiliation a protected characteristic. Labor Code section 1102 makes it unlawful for an employer to coerce or influence employees to follow any course or line of political action or activity. In addition to claims based upon such categories as race, religion or gender as discussed above, employees may also bring a claim that that they were improperly treated or discriminated against for failing to agree with or espouse political views in line with the employer’s views.
As if politics in the workplace weren’t complicated enough, employers must be careful to avoid restricting political expression protected by federal or state law. For instance, the National Labor Relations Board generally prohibits employers from restricting employees’ discussions on issues related to the terms and conditions of their employment, commonly known as concerted activities. A group of employees discussing minimum wage or health care benefits issues may have the potential to fall under the protections of the NLRA.
After all the talk reaches its pinnacle on election day on November 8, employers should be aware that they must allow employees who do not have sufficient time to vote outside working hours two hours at either the beginning or end of their shift to vote without loss of pay.
If you have any questions regarding HIPAA compliance, preparing or negotiating BAAs, addressing HIPAA breaches, or responding to OCR requests for information or investigations, please contact your Kutak Rock LLP attorney or a member of our National Employment Law Group.