Executive Lifestyles


Interview with Mike Schmidt

by: Claire Crowley, Staff Writer

Today’s political landscape seems more polarizing than ever before. Most people save their political discussions for when they’re amongst friends or family, but what happens when the watercooler chat at work turns political? Can your employer limit your topics of conversation while at work or on social media? What can you do if you feel that you’ve been offended by a political conversation in the workplace? We interview labor and employment law attorney Mike Schmidt of the New York based law firm Cozen O’Connor to get some clarification on these issues for both employers and employees.

Mike, please tell our readers a bit about yourself:
I am a shareholder at Cozen O’Connor, and the Vice Chair of our firm’s national Labor & Employment Department that provides cost-effective advice and litigation defense to companies and management. I also am the host of an employment law podcast called “Employment Law Now.” With new episodes every two weeks, you can find and download the free podcast on iTunes or on my separate web site at http://www.employmentlawnow.com.

You’re a labor and employment law attorney. What exactly is labor and employment law?:
Very generally, labor and employment law involves the law and rules governing the employer-employee relationship, and best practices for ensuring that the workplace is appropriate and compliant with governing legal requirements.

The growing divisiveness in politics today has left many employees wondering what topics are acceptable for their watercooler chats. Do employees have the right to free speech while at work?
It is important to understand that the notion of “free speech” as a matter of Constitutional protections applies only to public employers, and not private employers. With that said, there are various laws on the federal, state, and local levels that restrict an employer’s ability to regulate discussions over certain topics (though mostly during non-working time).

What, if anything, can employers or human resources departments do in the event that their employees’ watercooler chats get out of hand?
It really depends on what is meant by “out of hand” and the nature of the “chats.” Employers should make sure that they have appropriate and effective workplace policies that address inappropriate harassment, discrimination, retaliation, and violence in the workplace, and should have a mechanism in place to address discussion that violates such policies or otherwise makes an employee (or group of employees) uncomfortable to the point of not being able to do their job.

What would you suggest that an employee do if he or she has been upset by inappropriate remarks about race, gender, ethnicity or religion while at work?
At a minimum, an employee in this situation should avail himself or herself of the complaint procedure established by the company. If none, the employee should raise the issue with a company human resources professional or management employee with whom the employee feels comfortable. A company cannot attempt to investigate and resolve an issue about which it knew nothing.

How would you advise a business owner in their approach to discussing with employees a policy of limiting political discussions at work?
First, to the extent possible (and to the extent the policy is consistently applied), employers should consider advising employees to refrain from engaging in excessive political discussions during the time they are supposed to be working. Second, it is also important that employers tell employees to be sensitive to the fact that political discussions can often become emotional and highly charged, and that in no event should a discussion about politics rise to a level that otherwise violates the company’s other workplace rules (such as anti-harassment and anti-discrimination policies).

Let’s chat about social media. It seems like everyone has a social media account – whether it be Facebook, Twitter or Instagram. Social media accounts are prime platforms for unfiltered discussions. Can employers monitor the social media accounts of their employees?
This is a very broad question, and really depends on what is being monitored, why, and by whom. Employers should avoid surreptitiously “friending” or connecting with an employee under a different name as a ruse to gain access to otherwise private posts, and should also give thought to the reason(s) for monitoring so as not to stumble upon information or pictures that might form the basis of a manager taking inappropriate adverse action against the employee. Many jurisdictions also have laws that prohibit employers from demanding or requesting that an employee provide social media account passwords.

Can employers ask that employees don’t discuss certain political matters on social media?
It is less likely that employers can appropriately limit an employee’s ability to engage in political discussion on social media during non-working time, particularly as many jurisdictions have “legal activities laws” that generally prohibit regulation of off-hours off-premises political activity.

How can our readers follow up with you if they have more questions:
If someone is interested in potentially seeking legal advice on a particular matter, he or she can look at our web site (www.cozen.com) and also contact me directly at mschmidt@cozen.com or 212-453-3937.

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