The Employment Law Counselor hosted by Jeff Stewart Episode 13

Talking Politics Can Lead to Employer Liability

This episode of The Employment Law Counselor Hosted by Jeff Stewart, features guest John Baker, Director of Labor Relations, Del Lago Resort and Casino. In advance of the upcoming presidential election, Jeff and John discuss what restrictions employers can put in place about discussing politics in the workplace, what protections employees have and how some political discussions can lead to liability under discrimination statutes.

Special thanks goes to White and Williams, LLP for partnership in the production of this episode. 

Transcript

The Employment Law Counselor hosted by Jeff Stewart Episode 13

PLUS Staff: [00:00:00] Welcome to this PLUS Podcast, The Employment Law Counselor, hosted by Jeff Stewart. Before we get started, we'd like to remind everyone that the information and opinions expressed by our speakers today are their own. and do not necessarily represent the views of their employers or PLUS. The contents of these materials may not be relied upon as legal advice.

Jeff Stewart: Hello, everyone. Welcome to The Employment Law Counselor Podcast. I'm your host, Jeff Stewart, and today we'll be looking at the topic of politics in the workplace. This podcast is a collaboration between White and Williams LLP and Professional Liability Underwriting Society, commonly referred to as PLUS.

Usually, I'm joined by one of my colleagues at White and Williams, but today, I'm joined by a White and Williams alumnus and longtime friend, John Baker, to get his perspective on our topic. How you doing today, John? 

John Baker: I'm doing great, Jeff, and how are you? 

Jeff Stewart: I'm doing great, and it's wonderful to catch up. Can you give our listeners a little bit of background on yourself and what you're doing now?

John Baker: Oh, yeah, sure. Well, after twenty-two years in the Labor and [00:01:00] Employment Department at White and Williams, I took stock of what I wanted to do in my second act. I moved back to my home state of New York, and I moved to Central New York. I joined a Churchill Downs property in Central New York as a director of labor relations at the Del Lago Resort and Casino.

I'm a member of the HR department and [Jeff], you know, you and I have dealt with HR departments forever. For the past year, and hopefully for many more, I will be dealing with lawyers as I was dealt with from HR departments of our clients. 

Jeff Stewart: So you are now the boots on the ground at your property and dealing with all the employee issues that come up?

John Baker: That's absolutely true. [And] hats off to the HR departments that we dealt with because this is very much more difficult. 

Jeff Stewart: Absolutely. How many employees are at the property that you're responsible for? 

John Baker: Six hundred seventy-five [00:02:00] employees, probably ninety to ninety-five percent of those are unionized employees. That's one union and it's a very strong union in New York State that deals with hotels and casinos and their headquarters is in Brooklyn, but they have a constant presence here.

One other thing about casino life is that you essentially share office space with the New York State Gaming Commission, and another office is dedicated to the New York State Troopers. All eyes are on every aspect of every minute of every day, which is three hundred sixty- five, but it's very intense. I can put it that way.

Jeff Stewart: Absolutely. You just mentioned it's a twenty-four seven, three hundred sixty- five operation, so you never know when that next issue is going to arise. 

John Baker: No, absolutely. Something that I've learned that I can share a little bit about the casino industry is the typical days that you and I had [00:03:00] off for vacation, Christmas, holiday, 4th of July, these are all high-volume days at a resort and casino. We are expected to be there on those particular days. 

Jeff Stewart: Interesting. Well, I want to thank you for joining us here today because we're going to talk about politics in the workplace, which is always an interesting topic and something that can lead to quite a bit of headaches.

And I always kind of start with, why are we talking about this? This may be the most obvious answer. Well, we're in an election year! Living where I am in Pennsylvania, where we are a swing state, it has been nonstop election commercials for months already and for months yet to come. Obviously, we're in a very polarized country here. In this episode, we're not taking sides or discussing specific issues, but instead our discussion is going to be about the discussions that are happening in the workplace on political topics, disagreements, and [00:04:00] how we handle those.

John, I'll ask you, it'd be nice to just say, “Hey, we can't talk politics in the workplace ever,” but is that really realistic?

John Baker: It is not realistic at all. I think maybe a half century ago, you could get away with that. But as the law under the National Labor Relations Act, for example, and the board's decisions interpreting that act have aged, different times lead to different results. Here we are in 2024, with almost four years of President Biden completed, which means almost four years of a new general counsel that has upended a lot of the decisions that the Trump NLRB had made. The end result is it's always very topsy turvy in the NLRA because it changes with the change of every president.

Jeff Stewart: Absolutely. One thing for our listeners is to note that when we're talking about the National Labor [00:05:00] Relations Act, most people think unions. However, that applies to both union and non-union employers. So, just because we make a reference to the NLRB's position interpreting the National Labor Relations Act does not mean we're just talking union employers.

John Baker: We saw that in 2023 when the board issued a decision relating to non-competition agreements and make decisions about that. Well, who usually is involved in non-comp agreements? [It] is nonunion employees. You're right, that's a factor that most employers are unaware of. 

Jeff Stewart: When it comes to the National Labor Relations Board, their position has, as John mentioned, changed several times over the past few decades, depending on who is in office. It really comes down to whether or not political speech is considered protected, concerted [00:06:00] activity. Now, John, can you give our listeners an idea of what's the threshold for protected, concerted activity? 

John Baker: Yeah, there's a definition that has evolved. If I could put it in a short form, it would be when two or more people in a unit gather together to engage in conduct in order to further their own terms and conditions and wages in a particular employer.

Now, having said that, it's not always just two or more people. You can have one person, ironically, engage in protected, concerted activity if what that person is doing is a natural outgrowth of wages and terms and conditions of employment, or it's another part of the Section VII definition that talks about mutual aid and protection. If an employer, by himself or herself, is engaged in conduct for mutual aid and protection, for example [00:07:00] on behalf of other people, that it may more likely to be protected.

Jeff Stewart: And it's not just speech as in verbal when we're talking about it, but political buttons, t shirts, things like that have also been found to be Protected speech under the National Labor Relations Act.

John Baker: Yeah, I first started looking into this issue, maybe 10 years ago, with the Fight for $15 Movement. At some point, when the Black Lives Matter Movement was just in its embryonic stages, I placed a call to an NLRB board agent that I knew and asked them, “How is the board going to address the Black Lives Matter movement?” At the time, there was a case in Philadelphia where employees were marrying these and they were thrown off the job. The prediction from the board agent that I knew was that it's kind of [00:08:00] different from Fight for $15. Well, what we're finding out now in 2024 is that the NLRB is saying, no, it's protected political speech for individuals to wear a BLM or Black Lives Matter regalia, unless there's certain concerns that an employer has that can be proven to be important. 

Jeff Stewart: In fact, the NLRB, the full board, issued a decision back in February of this year specifically on That Black Lives Matter issue where employees were writing BLM or Black Lives Matter on their work issued aprons. The employer argued that this is political speech, not protected speech.  The board essentially said, “No, we are going to expand it because we believe that this is an important matter and [00:09:00] we believe it is protected concerted activity and therefore to restrict that is unlawful and a violation of the National Labor Relations Act.”

John Baker: That was a very interesting decision and digging deeper into the details there are, as you know, Jeff, special circumstances under which an employer can have a little more control over this type of speech: if you have an employer that is carefully cultivating its image --which I think everyone could kind of make that argument--, if there's an employee safety issue and if there's a history of employee dissent or dissension in the workplace. 

 Let me give an example. I'm going to talk about what I have learned about the casino industry. This is just one example. Everything is very highly regulated by the state police, by the gaming commission, including what [00:10:00] you can wear on your person. That means the gaming commission through surveillance has to be able to see your badge. They have to be able to see identification on you. So, if you are wearing the TGI Friday regalia, it may cover that up. That might be one argument that can be used. The employee dissension one's pretty interesting because you're always going to have, I don't care how big your workplace is, you're going to have people that disagree.

I think it has to be more than just two people disagreeing. It has to be a dissension where there's constant bickering before the employer would step in. 

Jeff Stewart: I agree with that. I also think it's one where employers need to tread lightly because if you're trying to use one of these exceptions, you have to recognize who is in control of the National Labor Relations Board right now. It is much more pro employer now than it [00:11:00] was four years ago.

John Baker: Right. As we've talked about, it's very cyclical. I've always thought that the most significant change is not the members of the board, but the general counsel to the board itself. General counsel writes a lot of policy. General counsel takes positions that their term is going to focus on. General counsel decides, “Okay, we're going to look at the handbooks,” for example.  They’re going to focus on unlawful provision, all around. This is one of the reasons why I love employment and labor law, [it] is that it was going to change so you had to be on your toes.

Jeff Stewart: Absolutely. Another area that some people may know about and say, “Well, of course,” and others may be like, “Oh, I've never heard of this,” that employers need to be concerned about is there are some states where your political affiliation is a protected class. In other words, you can't make an employment decision based upon someone's political affiliation, whatever [00:12:00] it is. The same as, you can't make it based on their age under the Age Discrimination and Employment Act or based on a number of factors under Title VII. So, if you live in a state where that is the case, once again, you have to be on your toes. 

John Baker: It's a cautionary tale for employers out there. For example, Churchill Downs, where I work, they have twenty-five casinos across the United States. So, you can't have a one size fits all kind of provision or handbook or rule or code of conduct.

You can't because there's differences. I don't recall in Pennsylvania, whether the political affiliation was a doctor class. I'm not practicing law in New York State, so I can't tell you with any accuracy perhaps whether it is in New York, but it exists and it's something everyone has to be aware of. 

Jeff Stewart: Yes, John. The other area that I see employers needing to be aware of [00:13:00] are discussions that may start politically and then go in a completely different direction and implicate other employment laws, specifically the harassment issues. 

If you just look at the big issues on the campaign trail right now, as I said I see commercials on a daily basis living in Pennsylvania, but I'll say one of the biggest issues in this campaign is immigration. Well, if your employees are having that immigration discussion at work, you could be walking yourself right into a potential national origin discrimination or harassment case. 

John Baker: That is so true, the same with the war in the Middle East involving Israel. Someone could walk right into a religious discrimination discussion. Once you're in that discussion, it doesn't take too many steps before it can turn into a [00:14:00] harassment or a discrimination case.

Jeff Stewart: Absolutely. Following up on that, one of the other big topics or big issues is abortion and women's rights, which once again can lead very easily into discussions that someone may find harassing based on their gender.

John Baker: And think about the subtext to this gender identification, ability to procreate, things of that nature. I mean, it's just unending. 

Jeff Stewart: Absolutely. Now, there are a few other topics related to the election and political speech that I wanted to get your thoughts on, John. One of them is something when I've spoken to groups on getting ready for the election in 2024 about what to expect. I said, I can't predict any kind of an outcome, but one thing I can predict is that there will be long lines at the polling places. 

As an employer, do you [00:15:00] want to offer time off for voting? While it's not required here in Pennsylvania, there are many employers that will offer either “come in late or leave early” on election day so that if people are dealing with long lines, they can more easily manage it as opposed to getting out of work at quarter after five and then going and standing in line for two hours as everyone's trying to vote late in the evening. You don't get home and get to eat dinner until eight o'clock, and that's not a wonderful thing. So, I do have a number of clients who are providing time off for voting. I think you told me, John, that New York actually requires that in certain instances. Am I correct? 

John Baker: That is correct. It depends on when the polls are open in New York state. If someone does not have a two-hour period within which they can make it to the polls [00:16:00] because of their scheduled shift, you have to give them those two hours to get off. And hey, that two hours may be expanded if it's an expected high volume voting election year. So, like this year, that two hours may be expanded. 

I also think you have a client, Jeff, apparently that allows people to do that. It's going to be one of those things where it's a benefit, right? And it's something they can sell to potential employees saying, “Hey! Look, we also do this.” It's not a harsh thing to let people leave. As long as the schedule is covered, it's not a hard thing just as it's really not a hard thing to make it to a poll, to be honest.

Jeff Stewart: As I tell employers, really, this is an issue once every four years. It's a presidential election year is when you see the long lines. You're not going to see long lines like that for a school board election. So, you don't need to provide that time off for, you know, [00:17:00] every election day. But the presidential elections, frankly, they are a bit different so it is something to consider. 

The other thing I have spoken with two employers about is if they have rules about off duty conduct or social media policies? How [do] they treat political issues arising out of that, or that would fall under those policies? How do you think those should be handled, John?

John Baker: Off duty conduct is a very interesting issue from an employer's perspective. On the one hand, at what point is it none of your business what I do off duty? On the other hand, if someone is a well-known employee of a particular company and they're handing out flyers, we'll say at a political rally or something like that, I'm not saying you should have one rule, but you have to take a closer look. What you're looking at is the conduct [00:18:00] affecting our brand, if you will? Is it bringing ill repute to the company? 

Now, where you run into problems is, the employee under the NLRA also has the right to free speech that doesn't go away when they're off duty either. It's a balancing test and, as everyone knows [with] balancing tests, it just depends on how it feels. You're balancing the employer's right to protect its name, i. e. an asset, and the employee's right to engage in free speech. Now when I say free speech, I don't mean First Amendment stuff. I mean NLRA free speech.

Jeff Stewart: And I think that's an excellent analysis, John. I always warn employers, this is never a one size fits all. This is a time when you need to call your counsel, call your attorneys, have a conversation and really make sure because there's rarely going to be a clear-cut answer. You want [00:19:00] to make sure that you've looked at this from all different directions and not just made an emotional decision that, “Oh, this person's out there saying stuff that makes my blood boil. I want to get rid of them.” 

John Baker: Yeah, that's a good point. Again, this is why it's very difficult making these decisions when they are affecting people. [Are you going to] affect someone's livelihood? [Are you] going to affect the company's economic health? I think the key is just to make a decision, be consistent about it.

Jeff Stewart: Absolutely. John, let me ask you, how do you think employers can best mitigate their risks when it comes to dealing with politics in the workplace? Because there's no way to eliminate things especially [since] we're in a very politicized time and especially coming up on a very critical election. How is it that you think employers can really mitigate their risk?

John Baker: It's the same old story since I started practicing law. You have to have policies. A lot of people think, what good's a [00:20:00] policy? Really, what we're trying to do is try to prove before we need to, that we have advised someone what we expect. That's really what we're doing with a policy. Yeah, we want them to know, but if we're in court someday we want to be able to say, “Oh, yeah, I told them. [I] gave them this policy, they signed off on it,” so we can mark that box.

In addition to just general policies, you have to have an anti-harassment policy that protects not just the standard Title VII protected categories, whether they add the political affiliation category. You have to think ahead as to what are the likely situations where people can harass each other. Some harassment is not illegal, just general harassment. So far, the number of protective categories is not going down. It's going up. 

Jeff Stewart: And I would add to that, John, there's an importance in acting quickly. [00:21:00] Don't let things fester. I'll share a brief story coming out of the 2020 election. An employee and his supervisor [were] sitting around in a kind of a slow time of day, talking about the news of the day. That day, news of the day happened to be the Black Lives Matter Movement. That discussion, which lasted twenty/ thirty/forty minutes, started with Black Lives Matter [and] devolved into a series of things. Ultimately, the employee felt very uncomfortable and felt like they were being harassed, racially. Ultimately, that employee ended up quitting that day saying, “You know what? I have had enough. I feel like I've been harassed” and filed a lawsuit coming out of that saying, “You know what? I've been harassed.”

 Now we have to deal with a lawsuit on that issue. We can argue, “Hey, this was political speech. It wasn't racial speech,” [00:22:00] but we really want to avoid the lawsuit altogether. And frankly, I'm concerned that we're going to see things like this happen in the next six months.

John Baker: Yeah, you're likely to, but you make a good point about dealing with these issues quickly. Another reason to do that is if a person who is being harassed perceives that the employer's not doing anything, then they may quickly decide, “I'm getting a lawyer. I'm taking matters into my own hands.”  You have to show the person who's complaining that, hey, we're not just sitting around doing nothing. We are making strides and we will be in touch with you when we're done. 

Jeff Stewart: Absolutely. I want to thank you, John, but before we sign off here, I always like to give our listeners a few key takeaways. Do you have a key takeaway from our discussion here today? 

John Baker: Oh, absolutely. And that is train, train, train, train, train your supervisors. Train them again when you're done training. 

They have to [00:23:00] know the potential problems with political discussions. I've seen this many times. Political discussions bleed into other types of discussions because politics is about demographics. You have [a] political discussion. All of a sudden, it turns racial. It turns sexual. It turns disability wise, you name it. All of a sudden, you have yourself a mess.

You have to train the supervisors and hold them accountable. It's one thing to train, [but] you have to hold the supervisor accountable too. Especially in a unionized workforce. If you're not holding the supervisors accountable, the union will knock you down for that too. [You must] know the laws. Know the rules. Know your policies.

As I've mentioned to many people up here, we're all potential witnesses, right, in the workforce? Someday we may get up on the witness stand. Be prepared to defend whatever you've done. 

Jeff Stewart: I would add to that, that our political [00:24:00] system has become fractured and polarized. And frankly, that hampers productivity in the workplace.

Instead of saying, “Hey, don't have these discussions ever,” because again that's not really realistic, what you need to do as an employer is remind people that we're here to do a job. We need to respect others views, even if we don't agree with them. It's not meant as a time to argue. Somebody expresses it, okay you can disagree, but we're here to do X and let's focus on that.

That's a way for an employer or a supervisor to diffuse any potential arguments before they really get started. 

John Baker: I really couldn't agree with you more. It goes to civility. Maybe that's a trait that we don't value enough, not just the workplace, but in each particular profession. I think we should look towards people to act more [00:25:00] civil. That would lead to less lawsuits, to be honest. 

Jeff Stewart: I agree with that. Well, John, I can't thank you enough for joining me on this discussion. I want to thank you, our listeners, for joining us here on the Employment Law Counselor Podcast, where we try to make sense of the world of labor and employment law.

On behalf of myself and John Baker, we thank you for listening. If you enjoyed this episode, please leave us a five-star review. Tell your friends and subscribe to the podcast. For more information on this and many other topics, please visit the White and Williams website at www.whiteandwilliams.com where you can visit our blog and learn more about the firm.

Until next time, stay safe and stay compliant. 

PLUS Staff: Thank you for listening to this episode of The Employment Law Counselor. If you haven't checked out the previous episodes, make sure to give those a listen and check back in the next few weeks for the newest episode. If you have an idea for a future plus podcast, you can visit the PLUS website and complete the content idea form.