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Processing election rhetoric? Best to do it at home.

Anne Wallace Allen 2015Like most people who are paying attention to this season’s presidential race, I have read and heard things over the past few weeks that have caused genuine soul-searching. It’s hard to process all of it.

My first impulse is to hasten my recovery by talking to friends, including friends in the office. But it’s hard to tell whether it’s OK to talk about politics at work. I’ve taken hours of HR training, and I still don’t know. So I asked Dylan Eaton, an attorney who specializes in employment law at Parsons Behle & Latimer, to clear up a few things for me in advance of the election, when politics are on our minds. Dylan gave a presentation on this topic at his firm’s employment law seminar Oct. 11.

It turns out I’m not the only one who wants to sort through the rhetoric and the bombast with my co-workers. According to a CareerBuilder survey that Dylan used in his presentation, more than a third of workers talk about politics at work. The survey was carried out in 2012, the year President Barack Obama and his running mate Vice President Joe Biden defeated Mitt Romney of Massachusetts and Paul Ryan of Wisconsin. Among the people who said they talked about politics at work, about 23 percent, or one in five, said the conversation led to a “heated work exchange” or fight.

I’m sure that ratio of one in five would be higher if people took up the topic of the presidential race in the office this year. In fact, a survey this year by the Society of Human Resources Management found that more than a quarter of the organizations they surveyed perceived more political volatility in the office this year compared with previous election cycles.

The SHRM survey says 72 percent of organizations discourage political activity at work. But most don’t have a written policy on the subject – just a quarter of organizations do, according to SHRM.

For those who don’t, this might be a good time to dust off the HR manual and add a few paragraphs about campaigning and discussing politics at work.

It’s a very tricky topic to address in a handbook. The right to talk about politics (and other things) depends in part on whether you work in the public or private arena. While the First Amendment provides the right to free speech in matters pertaining to government actions, it generally doesn’t apply to what is said when you’re working for a private employer. That’s why, depending on where you work, your employer might be able to tell you to remove a bumper sticker from your personal vehicle and shut down your Facebook campaigning, especially if you’re using a work computer to post updates.

Complicating things further are other regulations that protect our speech here and there. For example, the National Labor Relations Act protects workers’ rights to talk about work with the purpose of protecting or improving their working conditions – unless they’re working for the federal, state or local government or in a host of other exempted areas.

That means, said Dylan, that some political speech is protected.

“If you had an employee wearing a ‘Vote for Smith’ button, a private employer might be able to tell you not to wear that,” he said. But if candidate Smith happens to be fighting for higher wages for workers, the private employer might not be able to restrict workers from campaigning for him or her, because that campaigning is protected speech.

With the heated rhetoric in this race regarding sexual assault, immigration, disability, and discrimination against women, it’s not hard to see a scenario in a private workplace where a manager who talks about supporting one candidate over another is overheard by an employee, who later isn’t promoted, or is demoted or transferred. The employee could claim this adverse reaction came out of his or her position on the political issue, said Eaton, and file a discrimination claim.

“When you’re talking about these details and the substance of these issues, a lot of them could be portrayed as discrimination types of issues depending on what happens to the employee in the workplace,” he said. “These are the nuances that private employers aren’t aware of.”

Some states (not Idaho) have provided additional protections for employees who are expressing political speech in the private workplace.

With all these variables, what to do? Eaton suggests that employers consider restricting political discussions from the workplace – though there are limitations on how far those restrictions can go because of exemptions like those in the NLRA. The employer might already have added political speech and affiliation protections to their anti-harassment policy; if they do, Eaton said they should make sure managers are enforcing it.

If political discussions are permitted, Eaton suggested managers remind employees that these conversations must comply with workplace policies that insist on respectful treatment of all personnel.

“The surprising thing for a lot of people is the First Amendment doesn’t apply to private employers,” he said. “However, there are other laws private employers should consider before completely restricting political speech. It’s kind of a never-ending topic.”

Anne Wallace Allen is the editor of the Idaho Business Review.

About Anne Wallace Allen

Anne Wallace Allen is the editor of the Idaho Business Review.