Workplace civility, freedom of speech, equal pay: Legal issues that also directly affect workforce

From striking the right balance between personal freedoms and workplace harmony to issues involving pay equity, employers have mounting issues to navigate in addition to workforce challenges.

Those topics that are considered workforce legislative issues will be the subject of a session at the upcoming WIN in Workforce Summit organized by the Sioux Falls Development Foundation on Oct. 28, headlined by Chad Greenway.

To learn more and register, click here.

Justin Smith, a shareholder of Woods, Fuller, Shultz & Smith PC, will be among the speakers.

Moderated by Sandra Wallace of First Premier Bank, the panel also includes Debra Owen of the Greater Sioux Falls Chamber of Commerce and Marcella Prokop of Southeast Tech.

We sat down with Smith for a preview of the conversation.

This is a full topic, so let’s tackle each area first. What issues have surfaced in the workplace around civility, and what should employers and lawmakers be aware of?

In the last few decades, employers have become increasingly focused on fostering positive, collaborative workplaces. Workplaces are more productive and morale is higher among employees where civility is a priority. On the whole, workplace “civility” is not something lawmakers should have to address through statute, although some laws have been enacted in this area. In 2014, for example, Tennessee became the first state to pass a “Healthy Workplace Act,” which encourages anti-bullying and respectful workplace policies. Courts will not generally punish workplace harassment unless it implicates some “protected characteristic” under the law – i.e., sex, race, age, religion, national origin, disability or some other protected class.

Many of us would probably approach the concept of “civility” by citing the Golden Rule – treat others as you want to be treated. Much of the concept of “civility” can be addressed through proactive employer policies. Employer and workplace policies have been drafted for decades to include requirements for respectful interaction with co-workers and customers. More recently, employers have begun to draft policies to include guidelines on inclusiveness, viewpoint tolerance and anti-bullying. When formulating such policies, it is advisable to seek counsel from your employment law attorney.

How have freedom of speech issues been evolving in the workplace? What are the emerging themes there?

In general, the First Amendment prohibits the federal government from enacting laws that would restrict an individual’s right to say or express themselves how they choose. While the protections for freedom of speech have been expanded over time, the First Amendment has limited application in private workplaces. Even if your employer is a government entity, your speech is typically only protected if it involves an area of public concern. In South Dakota, most private employment is “at will,” meaning an employer can terminate an employee at any time, for any reason, without incurring legal liability. Even so, employer decisions motivated by employee speech can create legal liability. This is particularly true where the speech at issue could qualify as “concerted activity” or where an employer policy on employee speech only affects a certain, protected class of people.

Some states have expanded the protections afforded to freedom of speech in private workplaces, including prohibiting employers from influencing employees’ votes and prohibiting discrimination based on political affiliation of employees. Such issues in South Dakota are typically addressed through employee policies adopted by private employers. These types of policies must strike a delicate balance. On the one hand, employees can be allowed some freedom to discuss political, social and related topics with co-workers. On the other hand, employers must be careful to prevent freedom of speech from infringing on workplace productivity and civility. For these reasons, private employers should consult with human resources and legal experts when crafting such policies.

Equal pay has been an issue for decades, but what elements of it are top of mind or should be today?

This topic is mostly outside my wheelhouse as an attorney, although I have seen legislation introduced in Pierre during my lobbying practice. In 1963, Congress enacted the Equal Pay Act, making it illegal for employers to pay women lower wages than men for equal work on jobs requiring the same skill, effort and responsibility. Many South Dakotans do not realize that we have also had pertinent law on our books for over 50 years. State statute prohibits an employer from discriminating between employees on the basis of sex by paying a lower wage for comparable work. Violations of the statute can be grounds for affected employees to sue their employer to recover unpaid wages and attorneys’ fees. The statutes further protect employees from retaliatory action in response to reports or lawsuits. Apart from these types of laws, much of the issue of equal pay is left to the free market.

What should organizations know more broadly about themes you’re seeing in the legal world that could directly impact their ability to recruit and retain?

Starting with recruitment, the legal issues implicated with job postings, candidate research, interviews and job offers continue to keep HR staff busy. However, the rise of remote work and virtual conferencing has led to some legal nuances with workforce recruitment. When hiring remotely or for a remote position, HR staff must first identify the best way to advertise for candidates. Availability of technology can lead to disparate impact among prospective employees. There is also the security side of virtual recruitment, including the risks to confidential information and potential that interviews will be recorded. On the practical side, employers and HR staff must wrestle with the implications of never interacting with candidates face to face before — or even after — hiring.

Switching gears to employee retention, the current job market often gives employees more leverage in the areas of wages, benefits and workplace conditions. Where practicable, an increasing number of employees are pushing for the ability to work remotely. Employers and HR staff must balance employee requests against the realities of the employer’s industry and structure. From a legal standpoint, employers should consult with HR and legal professionals to consider the impact of giving new employees wages and other benefits comparable to existing personnel. Remote work will again raise security, confidentiality and related concerns for willing employers.

What do you hope WIN attendees take away from this conversation?

The more things change, the more they stay the same. The COVID pandemic has certainly highlighted issues like workplace civility, freedom of speech and equal pay. However, even before the pandemic, topics like these were on the minds of employers, employees and lawmakers. As always, it is the proactive businesses that will set the trends on how these issues are addressed. The WIN attendees are demonstrating their commitment to engaging with these and other important topics for the benefit of our local workforce and business community. I am grateful for the invitation to join the WIN conference and speak to these developing topics.

Click here to learn more and register for the WIN in Workforce Summit.

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Former Minnesota Vikings Linebacker Chad Greenway to headline WIN in Workforce Summit

South Dakota native and former Minnesota Vikings linebacker Chad Greenway will headline the annual WIN in Workforce Summit on October 28 at the Denny Sanford PREMIER Center.

The annual workforce symposium brings together industry leaders, innovative educators, and business professionals from the upper Midwest region to prioritize, strategize, and energize workforce development.

Greenway, known for mental and physical resilience and strong work ethic, will kick off the event with a conversation on leadership.

“I’m excited about it,” Greenway said. “I love to break it down and tell the whole story about my background and where my leadership skills started.”

Long before he became a leader in the football huddle, Greenway gained leadership skills on his family farm in Mount Vernon, managing kids younger than he was. They built fences, moved cattle, and took on added responsibilities.

“That gave me the opportunity to be very selfless in my thought process of what it took to make a farm run and to thrive in that role and get better and strong,” he said. “Learning how to lead someone without an ego, I applied it in college, dropping back down and being a freshman and working your way up. Same thing in the NFL. The pressures that come with being a high pick and as a linebacker being a required leader in the huddle.”

In today’s workplace, there needs to be an emphasis on culture, he added.

“Are we a company people want to work for? Suppose the pool we’re hiring from has shrunk to essentially almost no pool. How will I attract that savvy young person coming out of college, or the veteran in the field you want to bring over? How do I separate myself?”

In business, as in football, it starts with fundamentals, he suggests.

“If you have a bad game or the team has a bad game, how do you right the ship? When you strip things back to fundamentals – footwork, responding to what I see in front of me, letting my body react – I always get back to my center. And I think companies have to get back to who they are,” Greenway said. “Set that culture, lean on that, and create an environment people want to be a part of.”

He’s also increasingly familiar with the newest generation entering the workforce, as a father of four ages four to 13 who coaches kids in basketball and soccer.

“This generation gets a little bit of a bad rap,” he said. “They don’t appear to be as hardworking as the generations that have come before, and I think that’s a fallacy in a sense because the work is just different now. Kids coming out of college are programming apps and building technology. We’re not cold calling for ad sales anymore. We’re working smarter to spread the word quicker, and we’re more efficient now than ever.”

No matter what the work, it gets back to being where people want to be, he added.

“How do I make it comfortable – not always fun, but an environment where kids want to come be part of that,” he said.

Greenway brings a valuable perspective to the topic of workforce and leadership, said Dana Dykhouse, president of First PREMIER Bank.

“We’ve had him speak to our staff before on lessons in leadership, and he has a really unique and great perspective on it,” he said. “He’s just got a great style and story from growing up in Mount Vernon to the bright lights of Iowa in college and his career with the Vikings.”

Chad Greenway’s leadership discussion kicks off at 12:00 Noon. Following Greenway, WIN Summit has nine breakout sessions with 43 talent and workforce experts. Experts will share their organizational strategies involved in talent development, attraction, and retention, to help and enhance your talent management initiatives. 

“WIN Summit break-out sessions have incredible and very tangible workforce tips to help organizations of all sizes,” shared Michelle Lavallee, CEO of South Dakota Children’s Home Society.” 

Human Resources professionals may also earn five continuing educational credits for attending WIN in Workforce Summit 2021 Telecast. 

“We’re thrilled to welcome Chad Greenway and grateful to First PREMIER for making it happen,” said Denise Guzzetta, vice president of talent and workforce development. “His message about what talent today wants in employment is very timely and will set the tone for an incredibly valuable day. We look forward to connecting him and dozens of other experts with tactical strategies you can immediately apply back in the workplace.”

Click here to learn more and register for the WIN in Workforce Summit.

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