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They Tell Me It's an Election Year.... Politics in the Workplace 101

As we near Election Day and continue to entertain ourselves with Presidential debates, the topic of politics will likely find its way to the water cooler and may spark some mini-debates inside the office.  Is this acceptable in the workplace? Maybe/ maybe not.  Here is our 101 version of Politics in the Workplace:

For Employees Who Do Not Participate in Early Voting

Fun Fact:  Lines at polling locations can be long.  Some states have laws that require employers to offer paid time off to vote in an election.  North Carolina is not one of these states and our state laws do not address this issue.  Technically, employers in North Carolina can  require employees to use paid or unpaid leave to vote in the election.  The question then becomes whether an employer should actually do this.  That answer depends on what type of corporate culture you want for your workplace.  It is a “best practice” to allow employees a reasonable amount of paid time off to vote in an election.  This doesn't need to be half a day - it could be only an hour or two and should come with some flexibility when there are surprisingly long lines or equipment malfunctions that cause a delay in the voting process.  Also, if you do not have a Voting Policy in your handbook, now may be an excellent time to make this addition.  

Federal laws also stay (mostly) quiet about employee voting during the workday; however, the National Labor Relations Board (NLRB) has quite a bit to say about these topics in the workplace. 

 The NLRB & Election Season:

The NLRB enforces a federal law called the National Labor Relations Act (NLRA). The NLRA has various employee protections for private sector employees regardless of whether or not the employee is a member of a labor union.  Often NLRB decisions can be seen as a bit outrageous but the NLRA does say this in Section 7:  

"[Employees]... have the right to engage in other 'concerted activities' for the purpose of collective bargaining or other mutual aid or protection." 

"Concerted activity" is a broadly defined term (like every other legal term) but it essentially includes any activity conducted for the mutual benefit and aid of an entire workforce.  For example, statements regarding workplace conditions made to one's colleagues is typically protected under Section 7 (above).  This may also include statements like "I'm voting for Hillary because of her position on equal pay - something needed here."   See how the election may come into play?  

As always, there are numerous caveats to the general rule.  Employees should be mindful of politically-tinted comments and jokes that could be seen as harassing.  For example, circulating a meme about Trump's latest comments on "locker room talk" could be seen as offensive.  Similarly, comments regarding Hillary's appearance or femininity could also be seen as harassing. As funny as the two candidates may be during debates, it may be safest to not repeat anything either candidate has said. 

The Dos and Don’ts of Election Talk in the Workplace:

Employers should consider reminding employees of the company’s social media policy just to make sure political discussions stay on personal social media accounts as opposed to corporate social media accounts (unless the NLRA applies and the comment is protected concerted activity).  Employers should also recommend to employees that election talk may not be the best for morale, could harass or insult employees with opposing views, and may harm workplace efficiency.  What your employees do on their own time is their call but Employers can at least drop hints as to what may be interpreted as inappropriate in the workplace.  Just keep in mind that the NLRA will also apply so protected concerted activities must be permitted. 

 To summarize, Employers should consider doing the following this Election season:

1.     Allow Employees reasonable time during the workday to vote.

2.     Encourage Employees to refrain from talking (or joking) about the election.

3.     Update or implement a voting policy in the employment handbook.

4.     Update your social media policy in the employment handbook (or remind employees of what it says).

5.     Refrain from punishing employees who are engaging in concerted activity protected under the NLRA. 

This is very general advice considering how off-beat the NLRB can sometimes be.  If you want a more thorough analysis, give us a call and we'll chat!

One last thing:  you can find out more about your polling location for Nov. 8th here and can learn more about voting and early voting in NC here

 

 

What Time is it? EMPLOYMENT HANDBOOK UPDATE TIME!

It's the end of February which makes it practically Spring and therefore time to so some "Spring Cleaning."  What is one thing all companies should do annually but few actually do ever?  Answer:  Review, revise, or even just read their Employment Handbooks.  If you fall into the latter category, here are some handbook provisions you should definitely not ignore, regardless of your size.

#1:  Social Media & Data Privacy

People have a lot of devices (e.g. iPhones, iPad, Macbook, laptop, desktop, etc) which means people are super connected to the world.  A major consequence of cool technology?  We are so connected that our personal life often blends into our professional life.  Because of this intersection, handbooks should have a policy stating employees have no right to privacy while accessing social media at work or on company-owned equipment.  This policy should also address cyber security and set parameters for downloading apps and programs onto company-owned devices and state that proprietary information should not be shared online (with the exception of certain protected communications). 

#2:  Overtime & Wage Deductions

Every company should have a policy prohibiting unauthorized overtime AND a method in place for submitting and approving overtime work.  

[NOTE:  Just because you prohibit unauthorized overtime doesn't mean you don't have to pay overtime that has actually been completed. The policy, however, gives you grounds to terminate an employee for not having the overtime work approved. Get it, got it, good.]

In addition to overtime, if you make any deductions from paychecks (other than standard IRS/tax deductions), you should include details in your handbook.  For example, if you loan tools to employees and take out the amount of the loan from their paychecks, this needs to be in writing.  Also, the North Carolina Wage and Hour Act has some additional rules regarding wage withholdings that may also come into play.  

#3:   LGBT Rights

A lot of companies have already revised their anti-discrimination or EEO policies to include sexual orientation.  If you have 15 or more employees, I would strongly recommend doing the same since more and more courts are recognizing LGBT protections under Title VII.  Of particular protected status: transgender employees

If you offer group benefits to employees, you should also revise any handbook policies regarding benefit eligibility.  Recall the 2015 Supreme Court case that legalized gay marriage nationwide which in turn makes gay marriage included in a lot of group benefits offered to employee spouses and children (e.g. healthcare). 

#4:  Smoking

Many companies have anti-smoking policies in place but does your policy address e-cigs?  If not, you may want to think this one over.  If your company has banned smoking on the job, your employees may have the expectation this would include e-cigs too.  

What about (legal) marijuana use?  Marijuana is still illegal in North Carolina and most other states and even where it is legally obtained and used, courts have held that companies can still ban the use of all drugs including marijuana.  This means a failed drug test is a failed drug test and can still be grounds for termination.  Alert your employees who have taken a liking to Colorado and Washington.   

Speaking of drug testing, did you know North Carolina has a Controlled Substance Examination Regulation Act?  We do and its ignored a lot so you may want a review. 

#5:  Retaliation 

Retaliation claims are on the rise according to the EEOC which means it is worth talking about retaliation in your handbook.  Employers, particularly those with 15 or more employees, should have an anti-retaliation policy for employees who report issues.  Supervisors and managers should also be well-trained on retaliation so that they know how to deal with employees who report bad things in the workplace.  You also want to make sure there is a good reporting procedure in place for employees to use when they need to report discrimination or similar complaints.

#6:  Reasonable Accommodation

Another hot topic with the EEOC and pertinent to employers covered under the ADA and Title VII.  Employers need to know how to deal with reasonable accommodations requests in the proper/lawful way.  The best way to do this is to put it all in a written policy that is available to employees and supervisors alike.  Once again, training supervising employees on how to identify reasonable accommodation issues is key.  

Luckily for all the NC employers out there, our state did not enact any new employment laws in 2015.  However, the federal courts and certain federal agencies have been all over the place with new interpretations of federal employment laws.  Employment handbooks should be treated as living documents that are subject to annual review (at a minimum).  If you want some help on this task, you know where to find us!