Canadian HR Reporter

CANADIAN HR REPORTER October 31, 2016 INSIGHT 19 Dealing with workplace politics in the wacky world of the U.S. election Walking the tightrope between employee preferences and legal requirements In just a few days, the U.S. presidential elec- tion will take place. You are thinking about that when you see your reception- ist wearing a button for her political candidate. You ask her to remove it because you have customers of diverse political views. She says "No," promising to fi le a case with the Supreme Court of the United States because you are violating her First Amendment rights. Note to the Supreme Court: We hope you enjoy her as much as we do. Well, First Amendment restric- tions do not apply to private em- ployers. The First Amendment restricts only government action. So you nicely tell your employee either the button goes or she goes. She walks off the job. Note to fi le: Discuss reserve for litigation. You continue down the hallway and see two employees wearing buttons for opposing candidates: • A Hillary Clinton supporter's button talks about the need for paid parental leave. •A Donald Trump supporter's button talks about religious lib- erty and Obamacare. inking of the First Amend- ment, you tell both employees: Off with the buttons. And the National Labor Relations Board (NLRB) responds: Off with your heads. If political buttons relate to terms and conditions of employ- ment, they may be protected un- der the NLRB. I won't say anything negative about the NLRB, even though the board seems fond of disparagement as they attack non- disparagement clauses. You go to your offi ce and hear two employees fi ghting over the election. Neither can believe their colleague would consider voting for the other candidate. It's time to play referee. Just focus on the disruptions without regard to the content. e NLRB probably would allow employers to focus on the disrup- tion, if substantial, even if the is- sues discussed were work-related. I say probably because, as you well know, this NLRB has defi ned em- ployee rights very broadly and management rights narrowly. You go back to your offi ce and close the door. e phone rings, a manager asks: If I allow an em- ployee to solicit for one candidate during his working time, do I have to grant equal access to another employee soliciting for the other candidate during her working time? You reach into your pocket and take a pill. Yes, it was lawfully pre- scribed after the last holiday party. Neither federal nor most state or local laws consider political affi liation a protected group. But forget the law: You don't want to alienate a sizeable portion of your workers, customers or business partners. But allowing solicitation uni- formly is not the answer to this question. Your uniform exception to your no-solicitation rule dur- ing the employee's working time now allows employees to solicit uniformly for unions during their working time. Oh, what a web the law weaves. After you talk with the man- ager, she asks you, as a friend: Whom do you favour? You think of changing the topic to some- thing less controversial — your sex life. Temperatures are hot and they will get only hotter. People often feel attacks on candidates are at- tacks on them. When the elec- tion is over, you need to work together. So, respond only if you have a strong relationship with the per- son who is beyond merely profes- sional and you are confi dent you both can survive knowing you may vote diff erently. Don't be too confi dent. You breathe deeply and begin to relax until you hear an employee making comments about Mus- lims or Mexicans. is is not a political, but a factual statement. Do you need to pick a side? Yes, according to the law. Brook no bias by either side. You must respond proactively to disparag- ing comments about Muslims, Mexicans, Evangelical Chris- tians, white men or any "protected group." To ignore is to condone if you are in a position of power. You call a friend and share what so many of us feel — you cannot wait for the election to be over. Your friend assures you that you have the holidays to look for- ward to — a time for peace and tranquility. Your friend clearly either is not a human resources professional or is just plain crazy if she thinks the holidays are the most wonderful time of the year at work — that's when every holiday decoration designed to increase inclusion is deemed a micro-aggression by someone else. Jonathan A. Segal is a partner at Duane Morris in the Employment, Labour, Benefits and Immigration Practice Group in New York. He is also the managing principal of the Duane Morris Institute which provides train- ing for human resource professionals, in-house counsel, benefi ts administra- tors and managers. He can be reached at jsegal@duanemorris.com. is blog was originally published by the Soci- ety for Human Resource Management (SHRM). How to hire a respectful employee Key interview questions can better guarantee you have a civil environment Question: We've recently had to let go of someone for disrespectful con- duct. is person was uncivil from the get-go and, in hindsight, it was a hiring mistake in the fi rst place. What should we do when hiring to ensure we're getting people who align with our "respect" value? Answer: Civility is a competence, just like any attitude-related work- place skill. If you want to strength- en the fabric of civility and respect within your organization, one key piece of the puzzle is to make sure you hire the right kind of folks to begin with. Getting the wrong people in the door can result in a negative ripple eff ect — incivility breeds incivility. You might see a souring of relationships and deterioration in team dynamics. And a spillover into relations with customers and stakeholders is also likely. You should be looking for evi- dence of competence in three key domains. For starters, select can- didates who demonstrate civility and respect in their own conduct. Equally as important, look for the ability to respond eff ectively to incivility that is directed at them. Finally, incivility thrives on silent bystanders — folks who observe incivility happening be- tween co-workers and do noth- ing about it, so you should check for the ability to respond to bad behaviour that occurs in the work environment around them. Here are some ideas to incor- porate into your hiring interviews: • Describe a scenario where the interviewee would be on the re- ceiving end of incivility. Ask how they would respond. A desirable candidate is one who would ad- dress things constructively— directly, professionally and re- spectfully. • Ask for an example where the person was treated in a rude or discourteous manner by a man- ager or colleague. What was his internal reaction? What was his response on the ground? What transpired? Did it go well — or perhaps not — and why? What did he learn and how did he ap- ply it? Explore the details. You're looking for candour, for an ability to refl ect on one's own reactivity, and for the capacity and willing- ness to take mature action. • Ask for an example of when the person had been himself uncivil (you may want to provide a loose defi nition of the term, and em- phasize that anyone can be un- intentionally uncivil — let the in- terviewee feel it's OK to "admit" his own fl aws). If he can't come up with one, then he is either not human or not truthful. If he does describe a situation, explore the details and learning, and how he would apply that in your work- place. • Did he ever work in an uncivil environment or team? What did he observe and experience? In hindsight, what part did he play in contributing to this environ- ment, either positively or nega- tively? You're looking here for an ability for insight about the eff ect the incivility had on him person- ally, on the team, on collabora- tion and, of course, on clients and stakeholders. • Describe a situation where the interviewee would be a bystand- er, observing a colleague being uncivil toward another col- league. How would he respond? How would he analyze the situa- tion? A desirable candidate is one who is able to listen to his inner canary that alerts him when the line of dignity and respect has been violated, demonstrates in- sight into the complexities of the dynamics of incivility, and has the willingness (and courage) to take an active stance. • If your organizational values in- clude a "respect" value (as yours indeed does), share that with the candidate and ask him to describe what "respect" means to him: Why is it important to him? How, specifically, would he live that out if he was to get the job (ask for past examples)? What would he do if he encoun- tered behaviours that are not in line with this value? What has he done in the past? • In your reference check, ask specifically about civility and respect. Share that your organi- zation is committed to respect, civility, diversity and the like, and inquire about the reference's per- spective on the extent to which the candidate's interpersonal conduct aligns with these as- pirations. If you have a Code of Conduct, consider sharing a few salient points with the person to illustrate the type of accountabil- ity and modelling you are looking for in prospective employees. ere are numerous advantages to having a civil work environment. Hiring the right people will save you lots of future headaches and challenging experiences, including having to let the person go. Sharone Bar-David is the Toronto- based author of Trust Your Canary: Every Leader's Guide to Taming Workplace Incivility and presi- dent of Bar-David Consulting, a firm specializing in creating civil work environments. She can be reached at sharone@sharonebar david.com. Sharone Bar-David TOUgHeST HR QUeSTiON Ask for an example where the person was treated in a rude or discourteous manner by a manager or colleague. What was his reaction? Temperatures will only get hotter. People feel attacks on candidates are attacks on them. When the election is over, you need to work together. In just a few days, the U.S. presidential elec- tion will take place. You are thinking about that when you see your reception- ist wearing a button for her political Jonathan Segal GUeST COMMeNTaRY

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