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

  • October 14, 2021

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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