How Firms Can Handle Heated Political Conversations in an Election Year

This year’s national elections in just a few months are concerning for many employers given the amount of division and friction that is publicly obvious. Even if the heaviest degree of partisanship is found only among a minority of the populace, that still means the possibility of deep conflicts in the office and not just in big corporations.

“For business owners in the middle market, it’s almost always personal,” Domenique Moran, a partner at the law firm Farrell Fritz, tells GlobeSt.com. “As law has developed, those issues have become more complex.”

“There are peaks and valleys in the activity in most workplaces that mirror the peaks and valleys we’re seeing more broadly in the U.S.,” she says. “I have started to prepare employers for what is likely to be a rocky summer with fairly high peaks during political conventions. For employers, it used to be that what was happening outside stayed outside, and that line has blurred significantly.”

Politics can enter the workplace in many ways, not just arguments at the water cooler. In the summer of George Floyd, employees would wear slogans on masks, aprons, and clothes at work. “The employer has to figure out how to manage a consistent policy that allows them to be productive in our work and not disruptive to whatever the business is,” Moran says.

To see it as just about cooling political conflict means management hasn’t thought deeply enough. Proselytizing is another common example that can happen. “You will get employees who prepare a signature block in their email, ‘Have a Blessed Day,’” she says. “Where do we draw the line? Do we have a policy? The challenge is oftentimes any policy is unwritten or is not as carefully enforced until there’s a problem. We tell employers is that you need a written policy in advance, and you have to be dogmatic in enforcement.” Whether the topic is politics, sex, race, religion, or sports team fandom, the policy must be clear and the enforcement as absolute.

But there’s more complexity. “The additional hurdle that employers are facing is a very expanded view of collected rights under the National Labor Relations Act,” Moran says. “We’ve seen the National Labor Relations Board take an increasingly broad view of collective action affecting the workplace.” Employers without an employee union often think they have nothing to worry about. But they do. “The board has taken a much broader view of what rights are protected. If employee activity is for a political purpose but that purpose is entwined with employment and rights of employment, then anyone taking action against that activity could be in violation of the National Labor Relations Act.” Given the number of employee concerns tied into conversations about politics, there is a lot of room for problems. But also, political affiliation is not a nationally protected class, although it is in some states. A policy can prohibit fighting or aggressive behavior by employees.

Given the complexities, before making any decisions, discuss strategies and tactics with a lawyer who knows labor and employment law.