Q: Two of our employees got into a shouting match this morning. Since many of our employees work in cubicles, their fight interrupted half the office, particularly nearby employees on the phone with customers.
When I talked to each of them, each called the other an idiot. Formerly, they had been great friends, but landed on opposite sides of the Kavanaugh Supreme Court nomination hearings and apparently had been discussing President Trump.
Afterward, I met with each. When one of them told me, "You don't have the right to tell me what I can and can't say in the workplace," I said, "Yes, I do," but then I wondered about free speech and employee rights.
A: During the Justice Kavanaugh confirmation hearings, more than 50 percent of Americans admitted they had taken part in political discussions in the workplace. Many of these discussions ended in conflict, frayed relationships and tears.
With the high-stakes midterm election only a week away, employers can expect more heated political discussions, lost productivity and damaged workplace relationships.
Employers generally can limit political discussions that disrupt work, such as full-volume shouting matches, as long as the restrictions they impose do not violate the National Labor Relations Act. The NLRA gives private-sector employees the right to engage in concerted activities for mutual aid or protection. This means that employers may not prohibit conversations relating to working conditions, such as comments about minimum wage or #MeToo, when employees talk about these topics in the context of current events or politics.
Employers can set limits for the lengths and volume of discussions they will and will not allow in the workplace and on work time; however, it may be difficult to enforce these restrictions. Employers need to be cautious about implementing "civility" rules, as the National Labor Relations Board has often ruled that protected discussions by their very nature may be inflammatory. For guidance concerning what works, employers can look to recent NLRB case law, such as The Boeing Co., 365 NLRB No. 154 (2017), in which the NLRB approved Boeing's rule that promoted "harmonious interactions and relationships" and general civility in the workplace. In their ruling, the NLRB outlined that civility rules may provide "common sense" standards of conduct that can be appropriately maintained in the workforce.
At the same time, employers need to protect their employees from political discussions that create a hostile or discriminatory work environment, such as ones that veer into race, national origin or gender. For example, a remark about "jobs not mobs" could quickly morph into a racially charged discussion. If you learn one of your employees perceives a heated discussion as discriminatory or hostile toward a legally protected group, investigate the situation and, if warranted, issue a reprimand to the harassing employee.
Our Constitution's First Amendment protects public employees from discipline as the result of their protected free speech or political views. That said, public employees may not use public resources such as their own work hours for campaigning.
What can employers do? They can provide training that teaches employees how to maintain civility when engaged in conflict-laden discussions. They can remind employees of the 13 categories legally protected against discrimination or harassment in Anchorage (race, age, color, sex, religion, marital status or changes in marital status, pregnancy, disability whether mental or physical, national origin, sexual orientation and gender identity).
They can ask managers to deal, as you did, with a heated political discussion as they would any other escalated situation. I advised a client last week to say to two combatants, "I realize you're both passionate about your candidates, however, this distracts you both from customer calls, forcing others to pick up the slack. Please get back to work."
Finally, you can ask each of your employees what he hoped to accomplish by arguing with the other employee. If either responds, "Get him to see he's wrong," ask if he thinks he can accomplish this by shouting. If either or both say that the other won't "get it," ask that he put his energy to better use, rather than waste his time fighting a losing battle by going round and round with the other.