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“Why Does She Get To Do That?” Handling Questions about Employee ADA Accommodations
The Americans with Disabilities Act (“ADA”) requires any employer with fifteen or more employees to provide reasonable accommodations to individuals with disabilities, as long as doing so does not result in “undue hardship” to the employer. A reasonable accommodation can be any change in the work place that helps a person with a disability to enjoy equal employment opportunities. The ADA has very strict guidelines about when and how an employer may inquire about an employee’s disability. What happens, though, when a non-ADA employee asks you, the employer, why another employee is receiving perceived preferential treatment?
The ADA strictly prohibits employers from disclosing medical information about employees, but even if privacy rules are adhered to, some accommodations will be obvious to others. For example, consider these situations:
- A diabetic employee takes more scheduled breaks than others so that he can eat small meals.
- An employee with temperature sensitivity is allowed to wear a modified dress code.
- An employee who experiences seizures is receiving a service dog and, as a result, she must leave work to train with the animal for two weeks.
Obvious accommodations that are incorrectly viewed as “special treatment” can lead to an uncomfortable work environment. An ADA-employee may choose to disclose their disability and accommodation(s) with their co-workers, but if they do not, an employer needs to know how to handle the situation.
If confronted with a question about an ADA accommodation, you should generally inform the inquiring employee that you have policies in place for those who may face difficulties in the office. You should not disclose who the person experiencing the disability is (even if it is obvious) or what the disability is. Emphasize that the business, and employees, must respect the privacy of every employee.
In addition, consider what you can do before inquiries start. Although employers are not under an obligation to explain the ADA to employees, it could be beneficial to outline the Act in your employee manual. By doing so, you will help employees become familiar with its rules and regulations. Training is another way to educate your work force. If employees know disability information is confidential, they will be less likely to ask.
You can also designate in your handbook who an employee should speak with in the event an accommodation is needed. Employees may feel as though they have to share their need with the boss, but it is a smart policy to have employees instead discuss the issue with an HR manager or department. HR personnel should be more familiar with the ADA and its requirements. If needed, the HR personnel can then share the information with necessary parties.
The ADA safeguards fairness for all in the work place. By knowing how to discuss the topic appropriately and lawfully, you will ensure that no employee feels slighted by another’s reasonable accommodation, as well as protecting the privacy of the employee requiring the accommodation. As with all employment issues, if a question arises which you or your HR professional is unsure how to answer, contact legal counsel before you act.
Preston Clark Worley is an associate with McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Worley concentrates his practice in employment law, land development, telecommunications, real estate and affordable housing. He is located in the firm’s Lexington office and can be reached atpworley@mmlk.com or at (859) 231-8780.
This article is intended as a summary of state and federal law and does not constitute legal advice.
The Equal Pay Act—Is Your Business Helping or Hurting the Cause?
In 1963, when the Equal Pay Act (“Act”) was signed by President Kennedy, women were earning an average of 59 cents on the dollar when compared to men.[1] Today, women earn about 80 cents on the dollar.[2] President Obama addressed the issue of equal pay in his second inaugural address, “[O]ur journey is not complete until our wives, our mothers and daughters can earn a living equal to their efforts.” Where does your business stand on the journey to equal pay? Equal pay may not be something that is high on your radar as an employer, but you should always be assessing if your business is compliant with applicable laws and whether employees are being treated fairly.
The Act generally requires covered employers to provide equal pay to persons (both men and women) who are performing the same job. It is important to know that job titles are irrelevant in the ‘same job’ assessment; it is the content that determines whether jobs are substantially similar. All forms of pay are subject to the Act—salary, overtime pay, bonuses, benefits, etc. The Act is an amendment to the Fair Labor Standards Act, thus employers are prohibited from retaliating against an employee who files a claim pursuant to the Act.
An employee does not have to show that the employer’s pay disparity is intentional or based on gender; the fact of a pay disparity for substantially similar jobs is enough. Interestingly, an individual alleging a violation of the Act can go directly to court and is not required to file a discrimination charge with the Equal Employment Opportunity Commission (“EEOC”) beforehand. It is the only law enforced by the EEOC which allows for this course. An individual can bring a claim within two years of the alleged unlawful compensation practice or, in the case of a willful violation, within three years.
In addition to the Act, there are other federal and state laws that prohibit employers from discriminating on the basis of gender in employment decisions. Title VII of the Civil Rights Act of 1964, for example, makes it illegal to discriminate based on sex in pay and benefits, too. If you are an employer and have questions about the Equal Pay Act or other federal or state law, contact the attorneys at McBrayer, McGinnis, Leslie & Kirkland, PLLC for answers.
Ryan Colleen Daugherty is an associate and member of the firm’s Litigation group. She focuses on employment and other commercial litigation, as well as estate administration and planning matters. She can be reached at rdaugherty@mmlk.com or at (859) 231-8780.
This article is intended as a summary of newly enacted federal law and does not constitute legal advice.
Can Having Employees Pose for the Camera Pose Problems for You?
Employers have a variety of reasons for using employee photos, including:
- internal company use (for a company directory or in the break room);
- external use (such as the company website or a blog post—you’ll find my picture below);
- for safety precautions (name badges or scan cards); and
- for commercial use in advertisements or marketing.
Employees are usually amendable to having their picture taken. But, there may be a few who express their genuine disinterest in being photographed. Such employees could simply be camera shy; others may have a more serious reason to refuse to have an image published. Some may need to protect anonymity for personal reasons, such as past domestic abuse. Others may adhere to religions forbidding taking pictures.
There are generally no legal ramifications for using employee photos, unless it is for commercial purposes. Most states, including Kentucky, have laws that require permission before using an individual or their “likeness” for commercial purposes. This is due to the commonly held notion that a person has property rights in his or her name and likeness and those rights should be shielded from exploitation. Kentucky’s law is codified in KRS 391.170.
If you need to use employee photos for a commercial use, there is a simple solution. Have employees sign releases in which they acknowledge that their picture may be used in a company advertisement and they will receive no compensation for the use of their photo. Keep these releases on file.
Even in a state where consent is not required, it is always a smart approach to use a release so that employees will not be surprised when they see their face plastered on a promotional piece. If minors appear in the commercial materials always use extra caution. Use a consent form, whether required or not, to be signed by the child’s parents.
A warning about taking photos of potential employees: if you take photographs of applicants applying for a job (to help remember who’s who), it may put you at risk for a discrimination claim. A photograph creates a record of certain protected characteristics (i.e., sex, race, or the presence of a disability) that employers generally cannot use in hiring considerations. If this information is collected and a discrimination claim arises, the burden will be on the employer to prove the photographs were not used to make a discriminatory employment decision.
I will leave you with a little common sense about employee photos. Always remember to publicize when the office picture day will be; no one likes showing up ill-prepared. Offer a “redo day” for those who are truly unhappy about how their picture turned out. If all else fails, resort to photoshopping. A little lighting adjustment or cropping can work wonders for a shutterbug humbug.
Amy D. Cubbage is Of Counsel in the Louisville office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She concentrates her practice in litigation in the areas of employment, complex tort and commercial litigation, including class actions, toxic torts and mass torts. Ms. Cubbage may be reached at (502) 327-5400, ext. 308 or acubbage@mmlk.com.
This article is intended as a summary of state and federal law and does not constitute legal advice.
Can you fire an employee for being too sexy? Don’t count on it, notwithstanding a recent Iowa decision to the contrary.
On the Friday before Christmas, the Iowa Supreme Court issued an opinion in which it held that it is not gender discrimination for a male boss to fire a female subordinate on the grounds that she is an irresistible sexual attraction for him, even when the female employee engaged in no improper conduct. Should you rely on this decision in making hiring and firing decisions?
Don’t count on it.
The Iowa Supreme Court decision issued on December 21, 2012, involved the firing of Melissa Nelson, a dental assistant, by dentist James Knight after ten years of employment – ten years of employment which Dr. Knight conceded were exemplary.
According to the published opinion, Dr. Knight complained toward the end of her employment that Ms. Nelson’s clothing was tight and “distracting.” She denied her clothes were inappropriate, and there appears to be no proof otherwise. Dr. Knight also told Ms. Nelson that “if she saw his pants bulging, she would know her clothing was too revealing.”
During the last six months of Ms. Nelson’s employment, Ms. Nelson and Dr. Knight started sending text messages to each other outside of work. Neither objected to the texting, but Dr. Knight’s wife, who was employed at the same dental office, found out about those messages in late 2009 and demanded he fire Ms. Nelson.
Dr. Knight acceded to his wife’s demands in early 2010, and fired her. He told Ms. Nelson she had become a “detriment” to his family and that for the sakes of both their families, they should no longer work together. He admitted that Ms. Knight was the “best dental assistant he ever had,” and that she had done nothing wrong.
The Iowa Supreme Court framed the legal question as whether “an employee who has not engaged in flirtatious conduct may be lawfully terminated simply because the boss views the employee as an irresistible attraction.” Justice Edward M. Mansfield, writing for the all-male high court, found that such a firing did not constitute unlawful discrimination under the Iowa Civil Rights Act.
Clearly this is now the law of Iowa regarding claims under the Iowa Civil Rights Act. But should employers outside of Iowa rely on this opinion? Absolutely not. This firing was clearly motivated by Ms. Nelson’s gender and Dr. Knight’s inability to control his sexual impulses. This appears to be clear gender discrimination under any normal definition, and the Iowa opinion is under fire from legal commentators across the country. It is doubtful that any other court would follow Iowa’s example.
Prudent employers should learn from Dr. Knight’s example and use it not as a model, but as a course of conduct to avoid. Notwithstanding Iowa’s blessing, don’t rely on “irresistible attraction” as a basis for termination.
Amy D. Cubbage is Of Counsel in the Louisville office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She concentrates her practice in litigation in the areas of employment, complex tort and commercial litigation, including class actions, toxic torts and mass torts. Ms. Cubbage may be reached at (502) 327-5400, ext. 308 or acubbage@mmlk.com.
This article is intended as a summary of newly enacted federal law and does not constitute legal advice.
Fresenius USA Manufacturing, Inc.- Forcing Employers to Navigate the crossroads of workplace harassment & the NLRA
Properly navigating workplace harassment laws is a tricky endeavor for any company. A recent decision from the National Labor Relations Board (NLRB) in Fresenius USA Manufacturing, Inc. (September 19, 2012) makes employers’ obligations in this arena even more uncertain.
In Fresenius,Kevin Grosso, a pro-union employee, made several anonymous written comments in an Fresenius employee break room, apparently in an attempt to sway warehouse workers to vote against an ongoing union decertification campaign. After some of Grosso’s female co-workers complained to Fresenius that the comments were vulgar, offensive and threating, Fresenius investigated the comments and questioned Grosso directly, based on the fact that other employees identified his handwriting. During the investigation, Grosso inadvertently admitted responsibility for the comments, and Fresenius’ human resource manager terminated Grosso’s employment.
Following the termination, the union asserted a claim for unfair labor practices against Fresenius based on the investigation and Grosso’s termination. At trial, the NLRB Administrative Law Judge found in favor of Fresenius, ruling that both the investigation and the termination complied with the National Labor Relations Act (“NLRA”). On review, the NLRB upheld the ALJ’s ruling that the investigation, including the questioning of Grosso, was appropriate under the NLRA, based principally on Fresenius’ obligations under Federal law and its own employment policies to investigate harassing behavior. However, the NLRB found that terminating Grosso’s employment did violate the NLRA insofar as Grosso’s comments encouraged other workers to support the union and therefore constituted protected activity under Section 7 of the NLRA.
To its credit, the NLRB’s opinion acknowledged that employers have a legitimate interest in investigating complaints of misconduct, including complaints of harassment. As the NLRB was seemingly aware, such investigations are a crucial component of ensuring compliance with Federal laws (Title VII in particular) and with an employer’s own workplace anti-harassment policies. Nonetheless, the NLRB was unwilling to overcome the protections of the NLRA in this instance. The NLRB held that although otherwise protected activity may in some occasions lose protection if the language is “sufficiently opprobrious, profane, defamatory, or malicious”, the use of vulgar or profane language in the workplace does not necessarily destroy the Act’s protections. According to the NLRB, Grosso’s comments, though facially offensive to other employees, did not rise to the level necessary to avoid the protections afforded by the NLRA.
Clearly, this decision places employers in a difficult position in having to avoid liability for failing to address and prevent workplace harassment but simultaneously having to avoid running afoul of NLRA-protected activity. The NLRB’s ruling in Fresenius creates a crossroads of competing employer obligations under these two legal principles that will force employers to proceed with the utmost caution in addressing harassing conduct related to any form of union or concerted activity. Employers facing these situations should seek the guidance of their HR professional and legal counsel in order to negotiate these seemingly contradictory responsibilities.
W. Chapman Hopkins is an associate with McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Hopkins concentrates his practice in litigation, with a focus on employment, business, and equine law. He is located in the firm’s Lexington office and can be reached at chopkins@mmlk.com or at (859) 231-8780.
This article is intended as a summary of newly enacted federal law and does not constitute legal advice.
EEOC’s Focus on Pregnancy Discrimination
Earlier this week, we gave you an overview of the issues that, according to a recent draft of its Strategic Enforcement Plan (“SEP”), the EEOC is likely to target in the coming years. One of the emerging issues highlighted in that draft relates to pregnancy discrimination, specifically, situations which force women into unpaid pregnancy leave after being denied accommodations routinely provided to similarly situated employees. In lock step with the EEOC’s express priorities, the following relevant cases have emerged over just the last few months:
EEOC v. Bayou City Wing - Pursuant to a policy in its employee handbook, Bayou City Wings laid off eight female employees after the third month of their pregnancies. At least one employee was terminated despite providing a note from her doctor indicating that she could work up to the 36th week of her pregnancy without any restrictions. Bayou City Wings argued that keeping a pregnant employee pas the third month would “be irresponsible in respect to her child’s safety” and would jeopardize his position with the company “for not following procedures.” The EEOC seeks an injunction, back pay with pre-judgment interest, reinstatement or front pay, compensatory damages and punitive damages, in amounts to be determined at trial.
EEOC v. Quest Intelligence Group – Tabitha Feeney was fired from her security officer job after taking maternity leave. Feeney had worked as a security officer for Quest for nearly one year, prior to her leave. After her leave, she contacted Quest to return to work, and the employer told Feeney that there was no work available. Quest indicated to Feeney they would bring her back if any positions opened up, but they never called. The EEOC’s investigation showed that the company had solicited and hired several male employees after Feeney’s request to return to work. EEOC filed suit, seeking lost wages, damages for emotional distress, and punitive damages, as well as injunctive relief such as training for company managers and employees, and compliance monitoring by the EEOC.
EEOC v. J’s Seafood, Panama City, Florida – J’s seafood restaurant laid off two pregnant waitresses because, as alleged by the EEOC, “their pregnancies caused them to be a liability to the company.” Both employees were hired in June 2011, and fired in October 2011, after the restaurant became aware of their pregnancies. The EEOC filed suit in U.S. District Court for the Northern District of Florida, seeking monetary damages, including back pay, compensatory and punitive damages, reinstatement and injunctive relief.
EEOC v. Muskegone River Youth Home - The EEOC claims that the Muskegone River Youth Home policy requiring “employees to immediately notify the company once the employee learns she is pregnant, and requires her to produce a certification from her doctor that she is capable of continuing work” is a form of pregnancy discrimination that violates the Pregnancy Discrimination Act, a part of Title VII of the Civil Rights Act. The EEOC seeks an injunction prohibiting Muskegon from maintaining the relevant policy.
EEOC v. Chemcore - Settled on September 21, 2012,Chemcore Industries, Inc. agreed to pay employee Marie Simmons $30,000 after firing her within hours of learning she was pregnant. Beyond the monetary award, a consent decree included provisions for equal employment opportunity training, posting of anti-discrimination notices, and reporting of internal discrimination complaints.
In addition to the EEOC’s focus on pregnancy discrimination, legislation was proposed earlier this year in the U.S. Senate, which would require employers to reasonably accommodate pregnant employees and applicants. The Pregnant Workers Fairness Act, introduced by Sens. Bob Casey (D-PA) and Jeanne Shaheen (D-NH), would also require reasonable accommodations for those limited by childbirth or related medical conditions. The bill includes a hardship exception for employers. Additionally, the bill makes it unlawful to deny employment opportunities to a pregnant employee or applicant because of the required reasonable accommodation, or to require that a pregnant employee take leave if she can otherwise be reasonably accommodated during her pregnancy. The bill also reiterates that employers may not take adverse employment action based upon pregnancy or the taking of leave for pregnancy related reasons. The bill also specifically directs the EEOC to issue regulations that identify and clarify some reasonable accommodations related to pregnancy and childbirth. Currently employers are prohibited from taking adverse employment against an employee because she is pregnant, and there are also some protections available under the Americans with Disabilities Act for employees with pregnancy complications, but they are not currently required to reasonably accommodate employees with regular pregnancies.
Given the recent focus on the treatment of pregnant employees, it may be an important time to evaluate whether your employment policies and actual workplace practices – written or unwritten – adversely impact pregnant employees? If you aren’t sure, now may be a time to revisit your employment policies and management training procedures.
Ryan Colleen Daugherty is an associate and member of the firm’s Litigation group. She focuses on employment and other commercial litigation, as well as estate administration and planning matters. She can be reach at rdaugherty@mmlk.com or at (859) 231-8780.
This article is intended as a summary of newly enacted federal law and does not constitute legal advice.
Looking at the EEOC’s Draft Strategic Enforcement Plan
Last month, the U.S. Equal Employment Opportunity Commission’s (EEOC) released a draft of its Strategic Enforcement Plan (“SEP”). The SEP is intended to, amongst other goals, establish priorities for the EEOC in the coming years. The draft included five broad nationwide priorities, as follows:
1. Eliminating Systemic Barriers in Recruiting and Hiring – Specifically, the draft highlights facially neutral hiring practices, which in practice, adversely impact protected groups (e.g. racial and ethnic minorities, older workers, women and applicants with disabilities). Examples expressed in the draft include: hiring or recruiting practices which have the effect of channeling or steering individuals into specific jobs due to their status in a particular group; restrictive application processes; the use of pre-employment screening tools such as date of birth screens in online applications; and other exclusionary policies and practices.
2. Protecting immigrant, migrant and other vulnerable workers – The focus here is on workers who may be unaware of their rights under equal employment laws, and the expressed intent is to target disparate pay, job segregation, harassment against these groups, and trafficking, as well as discriminatory language policies that may prevent certain workers from learning their employment law rights.
3. Addressing Emerging Issues – The draft SEP reiterates the EEOC’s suitability to tracking and promoting awareness for emerging discriminatory trends, and specifically lists a few emerging issues that it intends to target. These include the following
a. ADA Defenses – The application of defenses to the Americans with Disabilities Act such as undue hardship, direct threat and business necessity defenses.
b. LGBT Discrimination – Coverage for lesbians, gay, bisexuals and transgendered individuals under the sex discrimination provisions of Title VII.
c. Pregnancy Discrimination – Accommodating pregnancy when women have been forced onto unpaid leave after being denied accommodations routinely provided to similarly situated employees.
4. Preserving Access to the Legal System – The EEOC very clearly intends to target policies and practices which impede its investigative or enforcement efforts, or which discourage or inhibit individuals from exercising their rights under employment discrimination statutes. Examples of such practices may include overly broad waivers of liability and retaliatory action.
5. Harassment – This is always a focus of the EEOC, however, the SEP indicates some recognition that employers and employees may struggle with how to prevent and respond to harassment in the workplace. The EEOC appears focused on a re-vamped national education and outreach campaign.
The recent draft SEP provides some important and useful guidance for employers regarding what the EEOC will pay attention to in the coming years. It also provides a good reminder to evaluate, or re-evaluate, your company or organization’s policies and practices to make sure that it won’t become an EEOC target. If there are any doubts that the EEOC has set its sights on topics highlighted in the SEP, several new EEOC lawsuits involving pregnancy discrimination – one of the emerging issues described above — have emerged over the last two months. Check back on Wednesday, November 7th for an overview of these cases, and a discussion of whether your company needs to re-evaluate your pregnancy policies and practices.
Ryan Colleen Daugherty is an associate and member of the firm’s Litigation group. She focuses on employment and other commercial litigation, as well as estate administration and planning matters. She can be reach at rdaugherty@mmlk.com or at (859) 231-8780.
This article is intended as a summary of newly enacted federal law and does not constitute legal advice.
Social Media: The New Harassment Landscape Continued
A recent government study uncovered that 23% of harassment victims were targeted through text messaging, email or other digital forms. Not so long ago, the only evidence human resources had to investigate in harassment claims were the face-to-face comments of the parties involved, making the truth sometimes difficult to determine. With a digital trail of comments to follow, the investigation of harassment claims no longer relies on hearsay, recollection and “he said, she said” testimony, because nothing can refute written proof.
Even though there are pitfalls in allowing employees to use social media in the workplace, there are also very positive effects. Giving employees the ability to interact via social media keeps morale high, and can be a platform for work related resources. The marketing benefits of social media connections alone can outweigh the risks. The main objective of a social media policy should not be to ban social media usage on the job, but to protect itself through clear and concise social media policies. For example, a company’s anti-harassment policy should include social media and clearly state that derogatory comments about co-workers are prohibited and should be reported. Employers should offer training, not only to managers and supervisors, but to all employees about what is appropriate for online postings, and what is not. Perhaps most importantly, as illustrated in Espinoza v. County of Orange, etc. al. No. G043067, 2012 WL 420149 (Cal. App. 2012), employers have an obligation to investigate complaints and reports of suspect social media abuse just as it would with traditional harassment claims.
Crafting social media policies can be tricky business. Finding the right balance between being overly broad and infringing on worker’s rights is a struggle. Recently the National Labor Relations Board (NLRB) found that social media policy of Costco Wholesale Corporation violated Section 7 of the National Labor Relations Act because it too broadly limited employees’ on-line comments and conduct. Complete restriction is not the path to fairness and protection. Rather finding a balance in a carefully worded policy that provides examples and avenues for employees to safely report any suspect activity.
The laws concerning harassment, especially online, are complex due to the intersection of longstanding legal principles and with technological proliferation. The best course of action in a harassment claim will vary greatly depending on the circumstances of the case. Our attorneys have established a reputation for providing honest, practical advice. To discuss how best to develop policies that protect your business or address harassment that has already occurred, contact our attorneys today.
Benjamin L. Riddle is an associate in the Louisville, Kentucky office. Mr. Riddle is a member of the firm’s Litigation team, where he focuses his practice on employment law, commercial disputes and personal injury matters. Mr. Riddle can be reached at (502) 327-5400, ext. 305 or briddle@mmlk.com
Efforts to Restrict Employer Access to Social Media Passwords Pick Up Steam
Legislative efforts to prohibit employers and educational institutions from demanding social media passwords from applicants and employees picked up steam as California became the third state to pass such a law on Thursday, September 27, 2012. California joins Maryland and Illinois as states making this prohibition law, though none of the statutes have yet to go into effect.
The California statute prohibits employers asking for account passwords and from taking any adverse action, including discharge or refusal to hire, against an employee who refuses access to a social media account. The language of the statute appears to reach demands by employers to even review non-public social media posts without a password, such as an “over the shoulder” review at an employee’s desk, but the full contours of the law won’t be known until it is implemented.
In an interesting twist, the California law does not apply to devices issued by employers. So, if an employee accesses a personal social media account such as Facebook or Twitter on an employer-issued device. Thus, an employee who accesses a personal social media account on an employer-issued phone, tablet or laptop might be susceptible to a password demand.
In announcing the passage of the law – via social media, no less – Governor Brown of California emphasized that the law does not impact on employers’ existing rights and obligations to investigate workplace misconduct. For instance, if an employer has knowledge that an employee is harassing another employee via social media, the employer can’t use the new law as a shield to refuse to act. Employers must still abide by all workplace discrimination laws and provide a safe work environment for their employees.
At least twelve other states are considering similar laws, and similar bills have been introduced in both the U.S. House and Senate. Employers across the nation need to be aware of this trend.
If you have any questions regarding potential social privacy laws in your jurisdiction, give us a call.
Amy D. Cubbage is Of Counsel in the Louisville office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She concentrates her practice in litigation in the areas of employment, complex tort and commercial litigation, including class actions, toxic torts and mass torts. Ms. Cubbage may be reached at (502) 327-5400, ext. 308 or acubbage@mmlk.com.
This article is intended as a summary of newly enacted federal law and does not constitute legal advice.
Workplace Politics: Cooling the Debates
With the Presidential election just around the corner, employees may be talking about a lot more than gossip around the water cooler. Given the argumentative nature of politics, every employer should be listening for potentially volatile discussions, with a goal of keeping the workplace comfortable and free of hostility this election season.
Private employers actually have a lot of latitude when it comes to limiting speech and expression – especially when it threatens the daily operations of the business. When you mention limiting speech, everyone naturally references their First Amendment rights. The protection of free speech afforded in the First Amendment applies to government censorship, leaving private employers free to apply their own restrictions in the workplace. Public company employees are generally more protected by the First Amendment than private, due to public scrutiny and industry regulations. In contrast, private employers can control employee work time activity, including any political speech or activity, especially if it interferes with work performance. Employers may also restrict employees from using company resources for political communications, including computers, internet and cell phones.
The National Labor Relations Act (“NLRA”) does provide one major avenue of protection for private employees that employers should take into consideration. Section 7 of the NLRA protects employee speech when it is concerted and specific to a work related matter. Employee speech is concerted if it represents more than one employee, engaged in an activity to improve conditions of their employment such as wages, hours or other terms. There are also state specific laws and court decisions that address political speech and activity at work. These applications vary from state to state, and most pertain to off-duty activity, which cannot be restricted, but employers should be aware of their implications as well.
Even though there is no law specifically prohibiting employment discrimination on the basis of political affiliation, it can be generally protected under Title VII of the Civil Rights Act and the Americans with Disabilities Act, along with a host of other federal, state and local laws. Employers are prohibited from discrimination, harassment and retaliation, which often spills over to encompass political speech, because politics are fundamentally infused with issues that cross the boundaries of race, national origin, sex and religion, etc. Regulating workplace political activity and speech is reasonable, but there are still legal pitfalls to be aware of:
- All employees must be given time to vote freely
- Managers need to be aware of discussions that lead to conflicts involving protected classes; race, sex, national origin, religion etc, which can turn into hostile work environment claims.
- Enforcement of policies regulating political speech should be consistent, regardless of viewpoint or lack of a legal threat.
All employers should strive to create a neutral workplace, providing a safe environment where employees feel free to express themselves, not stifled by their employer or other employees. Casual discussions regarding politics can foster this freedom of expression, and positive working relationships, which are crucial for employee morale and retention. Healthy discussions can be good for the workplace as long as they do not interfere with productivity or cause employee problems.
Employers do need to take precautions and consider what is best for their business, imposing certain limits on employee activities and speech is a sensitive undertaking, which deserves the attention of legal counsel — to avoid adopting overboard restrictions or creating adverse reactions within the workforce. Setting reasonable parameters through employee policies is always a solid safeguard. However, a complete ban on political discussions is very hard for employers to regulate. Measures can be put in place to protect the company and employees from political discussions that could potentially lead to trouble. When developing a policy that regulates employee speech, it is important to think about all of the ways in which employees engage with one another; including the use of company resources, such as smartphones and emails. Regulating these mediums for sending political messages can be an effective way to curb political debates. Check back on Friday, October 5th as we continue this discussion.
This article is intended as a summary of newly enacted federal law and does not constitute legal advice.
