Given the hostility and conflict in the 2020 presidential election, the tumultuous transition in the presidential administration, the ongoing COVID-19 concerns, and racial tensions, employers may have noticed an uptick in uncomfortable conversations in the workplace this past year. While some individuals have been raised to “never talk about religion, sex, or politics” in social settings, others may not be aware of, or may not care about the conflict, divisiveness, and harm to the organizational culture that these types of opinionated discussions may create. Unfortunately, most employers have experienced that “one person” in the workplace who makes his or her feelings known about everything. While that person may not be aware of how he or she is coming across when discussing controversial issues, their verbalized opinions may incite others, hurt working relationships, bring conflict, and destroy a healthy workplace culture.
When it comes to setting expectations for workplace conversations, employers should be aware of federal, state, and local laws that may address employee rights. They should also know what responsibilities they have to protect employees and what expectations they may set for employees in raising and responding to controversial subjects.
The First Amendment does not protect employees in private organizations for political expression or off-duty conduct. There may be, however, state or local laws that address these activities and other activities or conversations which are prone to create divisiveness. Where these types of activities are not addressed by federal, state, or local laws or regulations, private employers may decide whether they want to develop written handbook policies that would protect employees and proactively curb conversations that would be harmful to the organizational culture. The following policies provide an insight into policies that employers should consider in order to protect both employees and the workplace.
- Non-solicitation policy – When consistently enforced, employers may refuse to let employees distribute or display posters or fliers in the workplace. In the midst of a heated election, this may avoid undue stress between employees with differing points of view.
- Dress code policy – Providing boundaries on clothing may prevent employees from wearing political buttons or clothing that display negative social justice statements or obscene content and pictures that may offend coworkers.
- Social media and computer and email usage policies – Clearly defined rules for technology will set limits for personal use and may include a statement about forwarding non-business-related emails, articles, blogs, posts, etc., to other coworkers. This may help employee productivity as well as avoid uncomfortable conversations.
- Problem resolution policy – Providing steps on how to address concerns safely and appropriately and responding to uncomfortable conversations or actions empowers employees when a conflict arises.
Other policies such as anti-harassment, discrimination and retaliation, anti-workplace violence, employee conduct and work rules, conflicts of interest, and business ethics should also be included in the employee handbook as these will set clear expectations for employees. Of course, for any new policy, employees should have an opportunity to ask questions and to fully understand them.
With a couple of exceptions, workplace policies should be enforced consistently among all employees. The first exception is based on the National Labor Relations Act (NLRA) which protects employees when two or more are discussing wage or working conditions. Therefore, employers should steer clear from trying to prohibit employees from talking together about pay, working hours, managers, or other concerns they may have. The second exception is when employers are subject to a collective bargaining agreement (CBA), which may exempt employees from certain policies, such as wearing buttons, shirts, hats, etc. during a union organization or election. Otherwise, if an employee is expected to submit to a policy, all employees, including managers should abide by that policy. Inconsistency is a risk to employers because an employee who has been disciplined for violating a policy that another employee violated without discipline may have a claim for wrongful discipline or termination under some state laws.
Unfortunately, just having policies in an employee handbook is not enough. Managers should be trained to avoid engaging in dialogue when uncomfortable topics arise or if the dialogue could incite negative responses. Managers set the tone for their subordinates and managers who tend to gossip or talk about current topics or items in the news media may have more problems curbing uncomfortable conversations after they begin.
Employers may also want to consider training managers to check in with employees, and recognize employee anxiety, anger and fear due to political, racial, religious and COVID-19-related tensions. Demonstrating care for employees, shows that they are valued and respected.
Providing anti-harassment, discrimination and retaliation training for both managers and employees may afford not only protection against harassment, discrimination, and retaliation claims, but may provide a valuable opportunity to teach strategies for responding to, or walking away from uncomfortable conversations.
In cases where an employee harasses another employee because of their political views, the employer may discipline the harassing employee. In addition, if the employer is able to tie a person’s vocalized political beliefs to actual or highly probable business issues, challenges or problems, the employer may have grounds for disciplining the employee, up to and including termination of employment. Employers are encouraged to check with their employment law attorney or Human Resources Consultant to make sure that they are not putting their organization in harm’s way by disciplining an employee against what their policies state or against any federal, state, or local laws.
Also, employers do not have to tolerate criminal activity from an employee, even if the activity is off-duty. Given the organized protests for racial tensions and politics, such as the January 2021 event at the U.S. Capitol, employees would not be protected if they engaged in illegal activities. Of course, employers should complete their due diligence and conduct an investigation to corroborate that activity before taking any disciplinary action.
During this season of high strain due to politics, COVID-19 issues, and racial tension, employers may have the ability to reduce uncomfortable conversations by consistently applied policies, training, and proactive measures that demonstrate care for employees. However, above all, employers are encouraged to remember that diverse thinking is of value to any organization. Building a healthy culture that allows for diverse opinions may benefit employers as uncomfortable or divisive conversations occur.
For additional information on how to handle uncomfortable conversations in the workplace, please contact us at www.newfocushr.com.
Written by: Kathi Walker, SHRM-SCP, PHR
Sr. HR Consultant
04/12/2021
