Social and political activists increasingly use social media to pressure employers to take action against executives for engaging in non-work related activities. In a well-publicized recent example, Mozilla, the creator of the Firefox search engine, recently came under fire for naming Brendan Eich as CEO. Years earlier, Eich had contributed $1,000 to the Proposition 8 campaign, the initiative to ban same-sex marriage in California, later struck down by the courts. After a vocal group of activists, employees and Firefox users protested, the company announced Eich resigned.

Dropbox, a cloud storage company, experienced similar backlash for appointing Dr. Condoleezza Rice to its Board of Directors. Some disagreed with Rice’s appointment because of her defense of the National Security Administration’s (“NSA”) warrantless wiretapping program during the Bush Administration.

The increased use of social media, such as Twitter and Facebook, to influence employers’ personnel decisions could lead to similar incidents in the future that do not grab headlines. Employers planning to take action against employees for engaging in political activity outside of work once again may find themselves between the proverbial rock and hard place. For California law protects employees’ right to engage in political activity outside of work, even political activity that offends the employer or its constituents.

The Labor Code Protects Employees’ Political Activity

California Labor Code sections 1101 and 1102 prevent private sector employers from controlling an employee’s political activities outside of work. Section 1101 prohibits employers from making, adopting, or enforcing any rule, regulation, or policy that forbids or restricts employees from participating in politics or becoming candidates for public office. Under Section 1102, employers cannot coerce or influence an employee’s political activity by threatening discharge or loss of employment. The Legislature enacted these statutes to protect an employee’s fundamental right to engage in political activity outside of work, without interference by private employers.

Protected Political Activity

California courts have broadly construed the protection sections 1101 and 1102 afford employees, particularly with regard to support for or opposition to gay rights. In Gay Law Students Ass’n v. Pac. Tel. & Tel. Co., the California Supreme Court recognized the struggle of the gay community to obtain equal rights, particularly with respect to employment. At the time, the law did not prohibit employment discrimination based on sexual orientation. The Court held that an employer violates sections 1101 and 1102 if it denies employment to applicants who identify as homosexual, defend homosexuality, or affiliate with gay organizations.

Mr. Eich’s situation is somewhat analogous to the one addressed in Nava v. Safeway, Inc., an unpublished decision of the California Court of Appeal. There, the court found that an employee had a viable wrongful termination claim because Safeway allegedly fired him for opposing gay marriage. Safeway claimed to have discharged Nava for taking down a sign he considered to be pro-gay. Nava claimed he was fired for his political beliefs.

Eich therefore likely had the right to contribute to Proposition 8 as a protected political activity. Mozilla contends Eich voluntarily stepped down; if true, of course, there is no legal issue. But the company could not force his resignation or fire him simply because he supported the initiative.

Ms. Rice’s support of the NSA program may also amount to political activities protected by sections 1101 and 1102. However, Ms. Rice’s situation differs from Eich’s because she is a director on the Board of Directors, rather than an employee. It is unclear whether sections 1101 and 1102 protect board members as “employees.” An unrelated provision, Labor Code section 3351, provides that company board members are considered “employees” while rendering service to the company for pay, at least for purposes of workers’ compensation coverage. If Rice is deemed an “employee,” her prior political activities outside of the boardroom are protected from adverse consequence.

The Protection of Public Sector Employees’ Political Activities

Sections 1101 and 1102 apply to private sector employees. Public sector employees also have the right to engage in political activates outside of the workplace. Governments Code sections 3201 et seq. protect public sector employees from retaliation for engaging in political activities. Protection for public sector employees’ speech also falls under the First Amendment of the United States Constitution, and the California Constitution. First Amendment protection applies if: (1) the speech is a matter of public concern; (2) the employee speaks as a private citizen and not as a part of his or her official duties; and (3) the employee’s speech interest outweighs the government’s interest in efficiency and effectiveness.

However, the First Amendment does not permit public sector employees to make statements that would violate civil rights laws, such as California’s Fair Employment and Housing Act or the federal Civil Rights Act of 1964. Thus, it does not protect employees who make discriminatory, harassing, or retaliatory statements.

Tips for Employers

All California employees, even high-ranking officials, have the right to engage in political activities outside of work. Therefore, employers should refrain from taking any negative action against an employee based on his or her political conduct or affiliation outside of the workplace.

In some cases, external opposition to an employee’s non-work-related conduct may be effective. Employers naturally wish to avoid boycotts and negative attention from the media. It may be that employers are faced with negative publicity or even decreased business and morale issues when employees or executives take unpopular political stands. It may even become difficult for the employee to do his or her job, particularly if the position involves high rank or leadership. Employers facing these circumstances must act cautiously to avoid legal action. Employers may negotiate the employee’s resignation, as appears to have been the case in the Mozilla matter. In the case of high-ranking management, it may be a good idea to draft employment contracts to address such situations, as they appear to be becoming more common.

Finally, employers should continue to manage employees’ performance and effectiveness in their jobs, even if they are more cautious about acting on employees’ conduct outside the workplace.

X