HR Must Referee Employees’ McCain-Obama Debates: Know the Law

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in Firing,HR Management,Human Resources

John McCain and Barack Obama aren't the only people embroiled in political debates this fall. So are some of your employees. On the heels of the political conventions and with polls showing a presidential race that's tighter than ever, water-cooler conversations may turn especially heated in the next few weeks. HR plays a key role in keeping it civil.

Some employers try to quell such distraction by putting a gag order on political speech.

Our advice
: That's not a smart move. A no-political-talk policy is impossible to enforce; plus, you'll choke morale and could open your organization to a lawsuit.

Still, employers have the legal right to control employees' activities on the job. That includes stopping political activism and solicitations.

Don't let employees use the First Amendment as an excuse to say anything they want. While the Constitution says the government can't stifle employees' free-speech rights, it doesn't restrict private employers from setting such limits.

Where you can run into trouble, however, is if your organization retaliates against an employee because of his or her political expression. Why? Because protecting employees' freedom of political expression remains an important "public policy" concern, on par with protecting employees who perform jury duty.

Best bet: Draft a policy that minimizes distractions while allowing free speech. Explain the policy to staff. Five tips:

1. Cite a business reason for actions. Restrict only those political expressions that might affect productivity or customer relations. For example, you can ask a cashier to remove a campaign button.

2. Be consistent and evenhanded. Inconsistency is always tough to defend in court. For example, don't make employees take off pro-Obama buttons, while allowing pro-McCain ones.

3. Provide guidelines. Clearly tell employees that all workplace speech—political or otherwise—must be respectful, accommodating and tolerant of others’ views.

4. Don’t retaliate against off-duty political activity. In most states, employees are protected against discrimination, harassment or firing based on their political views and activities conducted after-hours.

5. Never press employees to vote for a specific candidate. Almost every state forbids an employer from using threats of employment consequences to influence an employee’s vote.

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