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Political HR Tale in Wacky World of Election 2016
Posted 09.08.16
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Jonathan A. Segal
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I am pleased to share my latest post to The SHRM Blog regarding the upcoming election and the workplace.

In less than two months, the Presidential election will take place. You are thinking about that when you see your receptionist wearing a button for her political candidate.

You ask her to remove it because you have customers of 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, First Amendment restrictions do not apply to private employers. The First Amendment restricts only government action. So you nicely tell your employee either the button goes or she goes. She walks off the job. Note to file: discuss reserve for litigation.

You continue down the hallway and you see two employees wearing buttons for opposing candidates:

-A Clinton supporter’s button talks about need for paid parental leave.

-A Trump supporter’s button talks about religious liberty and Obamacare.

Thinking of the First Amendment, you tell both employees: off with the buttons. And the NLRB responds: off with your heads.

If political buttons relate to terms and conditions of employment, they may be protected under the NLRB. I won’t say anything negative about the NLRB, even though the NLRB seems fond of disparagement as they attack non-disparagement clauses!

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.

Just focus on the disruptions without regard to the content. The NLRB probably would allow employers to focus on the disruption, if substantial, even if the issues discussed were work-related. I say probably because, as you well know, this NLRB has defined employee rights very broadly and management rights narrowly…

You go back to your office and you close the door. The phone rings: a manager asks if he allows an employee to solicit for one candidate during his working time, does he 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.

Neither federal nor most state or local laws consider political affiliation a protected group. But forget the law: you don’t want to alienate a sizable portion of your workers, customers or business partners.

But allowing solicitation uniformly is not the answer to this question. Your uniform exception to your no-solicitation rule during the employee’s working time now allows employees to solicit uniformly for unions during their working time. Oh what a web the law weaves.

After you talk with the manager, she asks you, as a friend: whom do you favor? You think of changing the topic to something less controversial—your sex life—but the thought is just that.

Temperatures are hot and they will get only hotter. When the election is over, you need to work together. People often feel attacks on candidates as attacks on them.

So, respond only if you have a strong relationship with the person that is beyond merely professional and you are confident you both can survive knowing you may vote differently. Don’t be too confident.

You breathe deeply and begin to relax until you hear an employee making comments about Muslims or Mexicans. This is not a political, but a factual statement. Do you need to pick a side?

Yes, the law. Brook no bias by either side. You must respond proactively to disparaging comments about Muslims, Mexicans, Evangelical Christians, white men or any “protected group.” To ignore is to condone if you are in a position of power.

You call a friend and share what so many of us feel–you cannot wait for the election to be over. Your friend assures that you have the holidays to look forward to—a time for peace and tranquility.

Your friend clearly either is not an HR professional or just plain crazy if she thinks the holidays are the most wonderful time of year at work. Every holiday decoration designed to increase inclusion is deemed a micro-aggression by someone. Stay tuned for more on holiday headaches in December!).

But until then we must survive. And, we will—with a little help from Gloria Gaynor.

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About Jonathan A. Segal
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Jonathan A. Segal is a partner at Duane Morris LLP in the Employment Group. He is also the managing principal of the Duane Morris Institute. The Duane Morris Institute provides training for human resource professionals, in-house counsel, and other leaders at client sites and by way of webinar on myriad employment, leadership labor, benefits and immigration topics. Jonathan has served intermittently as a consultant to the Federal Judicial Center in Washington, D.C. for more than 20 years, providing training on employment issues to federal judges around the country. Jonathan also has provided training on harassment on behalf of the EEOC as well as providing training on diversity to members of the United States intelligence agencies. Jonathan is also frequently a featured speaker at national, state and local human resource, business and legal conferences, including conferences sponsored by the Society for Human Resource Management and the Pennsylvania State Chamber of Business and Industry. Jonathan’s practice focuses on maximizing compliance and minimizing legal risk. Jonathan’s particular areas of emphasis include: equal employment opportunity in general and gender equality in particular: social media; wage and hour; performance management; talent acquisition; harassment prevention and correction; and non-competes and other ways to protect your business. You can find him on Twitter @Jonathan_HR_Law .