Election Year Do's and Don'ts for Employers

This time of year, and particularly this time in history, it is seemingly impossible to keep politics, with its heightened passion and partisanship, out of the workplace. Friction imposed by emotionally contrasting viewpoints often leads to a corresponding decline in morale. Steve Bernstein, partner with Fisher & Phillips, a national labor and employment law firm, offers information to help ensure that productivity wins the race in your office.

This political season presents challenges like no other

Most people are accustomed to a measure of division between co-workers during election season, though, for the first time ever, an African-American will lead the ticket for one of the major parties, while the other party offers the oldest non-incumbent candidate in history, and with a woman running-mate. Apart from the standard concerns about productivity and maintaining a neutral, cohesive work environment, this year even innocently intended comments about any of the candidates could be used as evidence to suggest a pattern of discriminatory behavior or harassment. The very nature of this campaign touches upon some of the most sensitive subjects in the office: race, gender, age, as well as usual ideological and religious points of contention.

What is a Concerned Employer to Do? The good news is that many employers can do something, fairly simply, to limit partisan chatter —just as they can prohibit most other forms of inappropriate communication at work. The prevailing myth that employees have an absolute right to “free political speech” is just that —a myth. The constitutional right to freedom of speech does not extend to private employment, leaving employers relatively free to impose restrictions deemed necessary to maintain a productive, non-hostile work environment. They should not feel hampered in limiting what their employees can and can't say —even political debate entirely free of offensive topics can be addressed. If you notice that your employees are spending more time discussing candidates' positions than focusing on work, you have the right to refocus their attention.

Worth noting, the National Labor Relations Act, per a recently issued memorandum, does extend protections to employees in some instances.

Top eight election-year “do's and don’ts” for employers

Based on professional experience as a nationally recognized labor and employment law expert, Bernstein suggests:

• DO evaluate motives;
• DO remain neutral and comply with State laws;
• DO ensure policies are objectively developed and enforced;
• DO monitor political discussion;
• DON'T push political agendas;
• DON'T criticize, joke or jab;
• DON'T solicit funds; and
• DON'T gloat.

What About on Election Day?

Most states have enacted specific laws that afford employees the right to take time off from work in order to vote, though such provisions vary substantially. A few states require paid time off, while others entitle employees the right to use accrued personal leave. On the other hand, several states allow employers to require advanced notice and/or proof of participation in the voting process. Some states will impose criminal penalties upon employers who discharge or otherwise penalize employees for taking time off to fulfill their voting responsibilities.

Florida has chosen not to enact specific regulations governing voting leave. Nonetheless, the laws make clear that an employer may not discharge or threaten to discharge any employee because of the way he or she voted in any state, county or municipal election. Likewise, a Florida employer may not discharge or threaten to discharge an employee for failing to vote in such an election.

What can we do now to prepare for November 4th? Employers would be wise to consider specific policies that cover time off for voting. A written set of guidelines can help to standardize the process, easing the transition for departing employees and those who remain behind to cover their shifts. Practically speaking, the amount of leave extended for voting purposes may be dictated by the employee’s schedule.

For example, if an employee has off-duty availability while polls remain open, or otherwise has a sufficient amount of time to vote before or after work, you may not have any obligation to provide voting leave during working hours. Nonetheless, be sure to check specific voting leave laws for the states in which you operate before firming up any policy language. And keep in mind that policy language within your handbook or other related procedures may bind you under a theory of implied contract, even in the absence of mandatory leave provisions.

Policy or no policy, most employers will typically apply the rule of reason when it comes to voting leave. In so doing, they should consider the following steps leading up to the election:

In mid-October, post information so that employees are aware of all voting options, including early voting locations and ‘vote-from-home’ absentee balloting, which can help avoid long lines and unforeseen circumstances.

• Share your expectations on voting leave with employees in advance, including any requirement that they support leave with verification.
• Attempt to secure a reasonable amount of advance notice concerning employee plans for departing to vote.
• Advise employees that time off must be taken at the start or conclusion of their work shifts, if applicable/appropriate.
• Advise employees what (if any) voting leave time will be paid (two-hour maximum, for example).
• Provide employees with a sufficient amount of time to honor their civic responsibilities.

Some employees may request Election Day off to work at a poll or volunteer for a campaign —this should be treated as a regular vacation/personal day request, consistent with applicable state and local requirements.

Source: Fisher & Phillips LLP; www.laborlawyers.com. 

Reprinted with permission. © CCH

This time of year, and particularly this time in history, it is seemingly impossible to keep politics, with its heightened passion and partisanship, out of the workplace.