The SESCO Report – October 2012
Political Discussion Within the Workplace
Recently, SESCO received a call from a client regarding employees at odds over politics. The case involved a manager talking with someone over the phone about politics and being critical of one of the candidates. Another employee overheard the conversation, was offended and subsequently went to the human resources department stating that they were offended by the language. Although the manager on the phone did not intend for anyone within the workplace to hear his comments, they had a negative impact on another employee.
With the presidential election "heating up", it's likely that employees and your organization are talking about politics, emailing political cartoons or information, and communicating with customers and vendors. In fact, a recent Career Builders survey reported that 46% of employees stated that they planned to discuss this year's presidential election with a coworker. Unfortunately, only about 25% of organizations have a written policy on political communications.
Beyond the employee morale and productivity issues that may be affected, discussing politics in the workplace may also create potential liability for employers. Conversations regarding candidates often focus on race, sex or religion and can easily provide potential grounds for harassment, race, religious, age and/or gender, among other forms of discrimination, retaliation or other types of workplace discrimination.
To address such activity, please consider the following SESCO staff recommendations during this political season:
1. Does the first amendment's freedom of speech protections allow employees to express their political views in the workplace? Employers have wide discretion when it comes to limiting political expression of employees in the workplace. The first amendment generally applies only to government censorship of speech. As such, private companies can regulate speech even restricting political discussion in its entirety. Public employees are more protected by free speech, but even governmental entities can impose speech limits to ensure effective operations.
2. Can an employer require its employees to support the employer's political views/candidate? Federal election laws allow corporations to persuade a "restricted class" of individuals to vote for or against a political candidate. The "restricted class" is defined as "executive" or "administrative" personnel who are employed by a corporation on a salary basis and have policy making, managerial, professional or supervisory responsibilities. Outside this "restrictive class", a company's communications to front-line employees regarding the election of political candidates is more restricted. In general, it's best to avoid pushing a political party or candidate to anyone outside of the "restricted class".
3. Can an employer prohibit political campaigning at work? An employer can and should regulate political campaigning at work through the enforcement of a non-solicitation policy which prohibits employers from soliciting other employees for political purposes during working time. Employers should treat political campaigning at work at it would other forms of solicitation under its non-solicitation policies, whether it is for school fundraisers, charitable causes or other civic endeavors unrelated to work.
Further, with the Internet age, employers must implement and consistently distribute and enforce their electronic communications policies stating that computer systems and devices are to be used for business related reasons and that employees' computer activity will be monitored.
For those who do not have non-solicitation policies in place, you may contact SESCO to design a policy that is reasonable as well as compliant.
4. Can employers prohibit political displays at work (buttons, signs, posters)? An employer can and should implement dress code policies that prohibit employees from displaying political items at work, such as buttons, pins, hats and other campaign paraphernalia so long as the employer consistently prohibits display of all forms of non-business related items. This can become very difficult such as in the non-solicitation policy as many rank and file employees wear hats, tee shirts or other paraphernalia with various logos of other companies.
However, under the National Labor Relations Act (NLRA), employees have the right to display labor union insignia at work. Thus an employee cannot be disciplined for wearing a union button that contains a political message, re "Teamsters for Obama" because the political message is likely outweighed by the protected union display.
5. Can employers restrict employees' off duty political activities? Most states provide protection for employees' political expression as well as other off duty conduct. As a result, employers need to be careful about not discriminating against employees for engaging in political activity after work.
6. An employee mentions to his supervisor that the employee's coworker constantly tells him that a candidate should not become president because of his religion. Another coworker tells colleagues at lunch that another candidate is too old to be president. What are some of the actions that should be taken by the employer? As a basic policy, the employer should follow established procedures for addressing employee complaints. An employer should not ignore any employee complaint. Subsequently, the employer must do what it can to ensure that the political discussion does not turn into a discussion of protected characteristics. Further, the employer should advise employees to always be respectful of others' thoughts and opinions. For these reasons, employers should distribute anti-discrimination and anti-harassment policies that include detailed compliant and non-retaliation procedures. Technically speaking, discussing politics is not covered by EEO laws. Only when the discussion engages in a protected class such as age, race, religion, does it become protected. Thus, each complaint needs to be carefully considered and appropriate follow up and action take place.
7. A devout Christian employee displays a Bible on her desk and strongly urges coworkers to vote for pro-life candidates. Can the employer take disciplinary action against the employee for displaying the Bible and/or for discussing her politics? Religion and politics are often intertwined because political beliefs differ on both sides. An employer must distinguish between the religious and political aspects of the employee's expression and conduct. The EEOC, in fact, has written guidance regarding religious discrimination in the workplace stating that an employee displaying a religious object in his or her private office does not pose an undue hardship on other employees. However, on the other hand, if the employee sat in the main lobby which all employees, visitors, clients and vendors must enter and displays the religious object, it would then likely constitute a hardship because it could be perceived as representing the employer's beliefs and viewpoints.
Employers should train managers to be adept at assessing the destruction that religious expression in the workplace could cause as opposed to simply ignoring it. Finally, employers should incorporate a discussion of religious and political expression and the need for sensitivity toward others into any anti-harassment/anti-discrimination and non-retaliation training provided to managers and employers.
8. Does an employer have to provide employees time off to vote? The majority of states protect employees' right to take time off from work to vote. Every organization should have within its employee handbook policies regarding voting time. Typically the policy will state that an employee should vote before or after work as polls are open typically before normal starting hours and after normal ending hours. However, if an employee can show that they do not have ample time before or after work to vote due to the employer's schedule, the employer should provide time off to that employee to vote.
SESCO's recommendations to address what many believe to be a very active and heated political season include:
• Implement a non-solicitation policy that prohibits all forms of solicitation – including political campaigning – during working time.
• Implement and communicate an electronic communication policy that explicitly mentions that the employer's computer system is for business use and can and will be monitored.
• Remind managers and supervisors to avoid political conversations or discussions with their subordinates. You may also want to include a specific section in company policies addressing political discussions in the workplace.
• Remind managers to report employee complaints – no complaint should ever be ignored. Also remind managers of the company's non-retaliation policy.
• Remind managers to even handedly enforce dress code and non-solicitation policies.
• Always be aware of state laws regarding employee political expression and voting leaves – contact your SESCO consultant.
• Contact SESCO before disciplining any employee for his or her political activities including missing work to attend a political rally.
• Advise employees that all workplace speech, whether political or otherwise, should be respectful and tolerant of other views.
• Do not press employees to vote for a particular candidate.
• Communicate with supervisors regularly during campaign and election seasons to ensure that they understand the importance or creating a respectful and politically mutual work environment.
• Brace yourself as an employer to address issues relating to the "first amendment" and claims of "infringement on my constitutional rights". Employers can infringe on these perceived rights.
• Be sensitive to political discrimination, harassment and retaliation issues.
Top 10 New Hire Ideas
Do you remember the first day of your first job? It's probably likely you were a little anxious, as well as unsure of what to expect – would your new coworkers be welcoming? Would you adapt to the company culture? Could you successfully perform above and beyond expectations?
Now, however, you're on the other side of the situation, and about to welcome a new hire to your company. If there's one thing that's clear, hiring a potential candidate is definitely a process – from recruiting, interviewing, selecting, starting, and training a new member of your team – it's not only time-consuming, it's a big deal. You want to ensure the success of both your new employee and your company through a mutually beneficial relationship.
Here are 10 success-oriented ideas to ensure new employees have a great start:
1. Celebrate their first day, not their last day. Send new employees a gift to their home that will be delivered on the evening of their first day. By taking the extra time to make him or her feel special and appreciated, you will build your new hire's (and their spouse's) excitement and comfort level.
2. Organize a team lunch for day one. Every new employee is anxious on his or her first day. Giving them a chance to casually meet and chat with those that they'll be working with closely during lunch helps them relax and feel more at home.
3. Plan in advance. Before a new hire's first day, plan and schedule the set of meetings, documents and employee interviews required to get him or her up and running quickly and comfortably. That way, he or she won't be sitting around wondering what to do next – there will already be a set of meetings and activities planned to help him or her get acquainted.
4. Assign a mentor. Provide a mentor to help guide the orientation process and ensure that it goes smoothly. A mentor provides a new employee with extra attention and a warm welcome, give advice from his or her own experience with the company, and address any concerns that a recent employee might not feel comfortable sharing with a supervisor.
5. Schedule check-in meetings. A weekly check-in meeting will go a long way. You'll be up to date on how new employees are gradually getting acquainted with your company over time, how their first projects are coming along and if they need any help or advice from you.
6. Set up 30, 60 and 90 day goals/reviews. By setting up specific job responsibilities for a new employee to adjust to and implement over a staggered period will not only keep them from being overwhelmed all at once, it will establish measurable goals that he or she can work toward and you can track.
7. Get them their tools on day one. Make sure each new employee has business cards, an email account, laptop and any other tools that they need to hit the ground running and stay in the loop from their very first day.
8. Make sure their workplace is set up and welcoming. You'll be wasting both your time and your new employee's if you're scrambling to get them workplace materials or don't have a prepared workspace for them, and efficiency is key when introducing a new hire to his or her new job and its responsibilities.
9. Personalize their welcome. Taking the time and effort to put up signage or a flat screen message welcoming your new employee on his first day will show your excitement to work with them and show them that they matter.
10. Emphasize company culture. Beyond your initial welcoming and training efforts, set up meetings to specifically address your company's culture and goals. Instead of simply allowing a new hire to figure this out over time, you'll allow them to start seeing where they fit in and how they contribute immediately.
By incorporating thoughtful elements such as the suggestions above into your new hire process, you will contribute to creating an efficient orientation that will motivate the new hire to further success. All and all, your time and effort dedicated to maximizing the new hire experience for employees will certainly lead to continued growth and success down the road.
Seven (7) Steps to Crack Down on FMLA Abuse
Employees are becoming more and more sophisticated in abusing the Family and Medical Leave Act (FMLA), particularly using intermittent leave when vacation and sick leave are not available. In order to minimize disruption in the workplace, employers must detect and deal with employees who abuse FMLA.
Unfortunately, managers are somewhat apprehensive when questioning an employee's requested FMLA because of their fear of violating the Act. Our first recommendation is don't be afraid to hold employees accountable for their actions.
Fortunately, the Family and Medical Leave rules and regulations provide employers with some rights that help limit potential abuse. Consider these following hints to eliminate or curtail potential abuse:
1. Calculate FMLA using a rolling "12" month period. Measuring FMLA using this method (looking back one year) avoids the potential abuse of employees "doubling" FMLA which can happen if measured on a calendar year.
2. Require employees to use all paid leave prior to taking unpaid FMLA. Employees are less likely to abuse FMLA if they have to burn up their vacation to do so.
3. Require medical certification to be returned within 15 days. An employer who requires certifications in writing, explaining the penalties for not turning them in, may take such action delaying the leave.
4. Require employees to provide thirty (30) days notice for foreseeable FMLA leave. Require advance notice to plan around absences.
5. Demand that employees schedule medical treatments around your operations schedule. The regulations allow you to schedule medical treatments before work or in the late afternoon in order for the employee to work as much of his or her shift as possible.
6. Establish and enforce reasonable attendance and call-in rules for all leaves. The law allows employers to enforce established 3-day no call, no show up policies even when the employee is on FMLA.
7. Assign employees taking intermittent leave to alternative positions that cause less disruptions, if possible. If an employee's continued intermittent absences interfere with operations, the employer may require the employee to transfer temporarily, during the period that the intermittent or reduced leave schedule is required to an available alternate position for which the employee is qualified.
SESCO has authored a Family and Medical Leave guide to include tips and staff recommendations to not only ensure compliance but also to effectively and efficiently manage this most complicated regulation. These can be ordered through SESCO at 423-764-4127 or from our online publications store by clicking HERE.
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SESCO Client Feedback
"The facilitator was knowledgeable and gave relevant examples related to the course material. Also, as a course, it included HR topics that HR professionals deal with frequently." ~ Human Resources — The Basic Course Attendee
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SESCO Client Inquiry — Staff Response
Question: We suspect an employee is under the influence of drugs. May we send him for drug testing even though we do not currently have a drug-testing program?
Answer: No. It is unwise to drug test employees without having a written policy on drug testing. When you single out an employee for drug testing and you do not have a substance abuse policy, your action may violate state privacy laws and can be perceived as a discriminatory practice. Instead, focus on the employee's performance problems. Substance abusers often have problems with attendance, high accident rates, and low productivity and accuracy.
We recommend that employers consider adopting a drug-testing program. A drug-testing program can result in a safer work place, while identifying and providing assistance to employees with substance abuse problems. In addition, many states provide discounts on workers compensation insurance to employers with a certified drug-testing program.