The legal battles between Andy McCabe, Peter Strzok and the U.S. Department of Justice are just beginning, and they give rise to a series of human resources issues that are important for managers — in the public and private sectors — to understand. In today’s heated political environment, the legal consequences of manager missteps can be severe.
Political talk in the workplace is a challenging issue for managers to address. Discussions can rapidly devolve into debates and fights, making the working environment uncomfortable and negatively impacting productivity and morale. Social media has raised the stakes. In extreme cases, these discussions can jeopardize client relationships and increase the risk of ancillary claims of harassment, bias, discrimination, bullying and retaliation.
Managers typically find themselves on the frontline when employees complain about bad workplace behaviors. An estimated 70 percent of complaints are made directly to managers as opposed to human resources or the legal department. Our research suggests that due to inadequate training, managers are consistently unprepared to handle these situations effectively. As a result, they expose themselves and their organizations to substantial liability.
If the allegations made by McCabe and Strzok against DOJ managers are proven to be true, it will serve as an important reminder to employers of all kinds that they need to exercise caution when dealing with employees who are expressing political views.
A cornerstone of the allegations by both McCabe and Strzok is that their terminations represented punishment for expressing constitutionally protected political opinions. Many are surprised to learn that First Amendment rights do not typically apply in the context of private-sector employers, but managers need to understand there are important exceptions.
For example, certain state laws protect employees in this regard. A manager at a restaurant may be legally permitted to terminate an employee who is critical of President TrumpDonald TrumpJan. 6 panel faces double-edged sword with Alex Jones, Roger Stone Trump goes after Woodward, Costa over China Republicans seem set to win the midterms — unless they defeat themselves MORE, but the devil is in the details. The First Amendment is intended to protect citizens from government actions that impede free speech, so public-sector workers are generally protected. Again, there are some important exceptions (for instance, the Hatch Act).
Retaliation is a particularly contentious issue raised in the McCabe complaint that is poorly understood by most frontline managers — and this is very dangerous. The lower burden of proof required for retaliation claims has led to a surge of complaints in recent years. And yet, 56 percent of the managers who participated in our workplace incident training simulations failed to discuss or explain retaliation with the complainant, witnesses or the alleged perpetrator. As a result, complainants or witnesses often fear they will be retaliated against and will be more alert to any perceived retaliatory behaviors. Furthermore, if alleged perpetrators are not clear on how broadly retaliation can be defined, they can wittingly or unwittingly engage in behaviors that expose the organization to further liability.
Of all the forms of bad workplace behavior, retaliation is the most corrosive. It masks malignancies that grow within a culture until they finally burst into view and lead to the questions: How long has this been going on? Why didn’t anyone say anything?
Managers will always be on the frontline when tough workplace issues arise — “going to your manager” is ingrained in every employee, and there is often fear and reticence about reporting directly to HR. Accordingly, as managers, we all need to practice being the leaders our teams expect us to be. We need to learn how to deal with employees who are engaging in contentious political conversations in the workplace.
Most manager training involves watching a video and answering some multiple-choice questions. The fact is, our research shows this approach does not adequately prepare us to deal with emotionally-charged workplace conversations and debates that can often escalate into allegations of harassment, bias, discrimination, bullying and retaliation.
We need to provide our managers with the opportunity to practice dealing with these scenarios in a safe and realistic way so, when real issues arise, they will be able to handle them effectively and decisively. Let’s give them the skills they need to be successful, and let’s make sure that political debates at the office don’t escalate into legal fights.
Steve Wiesner is the CEO of pelotonRPM, which recently conducted a study to understand the core dynamics that are driving these workplace problems.