The presidential primary season is upon us. The contests for both parties’ nominations are heated, reflecting the country’s politically divided mood. Employees naturally will bring their viewpoints and political beliefs into work; discussion will increase as the June California primary and November general election dates approach.
Contested elections historically have evoked strong feelings among employees. But this year could be especially divisive, given some of the candidates’ rhetoric thus far, social media’s influence, and other factors. Employers may be challenged to ensure water cooler conversations do not boil over. Before taking any action, employers should review legal rights and responsibilities concerning political activity in the workplace.
Freedom of Political Speech in the Workplace?
Private-sector employers generally have discretion to restrict, and even bar, political speech in the workplace. From a morale perspective, generally allowing political advocacy at work likely will cause tension between employees and supervisors who hold opposing views, or between and among employees.
For those employers who do allow political activity, consistent treatment is key. Political affiliations are legally protected in California. “Discrimination” against employees for their lawful political activities outside the workplace is illegal. Employees may support whomever they wish outside of work, or may run for office themselves, without interference.
At work, employers and managers who openly disfavor one party or candidate over another may have a right to do so. However, if the employer takes action against an employee who favors an opposing party or candidate, that employee may claim the “real” reason for the negative action is the employee’s political activity. So, banning display of just one party’s or candidate’s paraphernalia could be used as evidence of bias against the employee in a discrimination lawsuit.
Of course, instituting outright bans on political conversations brings with it its own perils. It is difficult to regulate all human activity. Employers are supposed to release employees from all control during meal periods, which should permit them to discuss what they wish. Moreover, under the National Labor Relations Act, overly broad non-solicitation policies can violate the law. Therefore, it is important to tailor policy to specific types of discussions. It is not always easy to distinguish between discussions about “politics” and about workplace issues such as the minimum wage, unemployment, economic conditions, and the like.
Public Employers Can Regulate, But Not Ban Political Conversations
Under California law, public sector employers’ power to restrict political activity is limited. Public employers cannot ban political conversations at the workplace outright. However, employers can regulate non-work activities to avoid disruption of work on behalf of the public. Before any public employer institutes workplace regulations regarding political conversations, it should obtain appropriate legal advice.
That said, public assets and property cannot be used to support any political campaign unless otherwise allowed by law. Public employers should keep a sharp lookout for property misuse during election time.
Soliciting Political Contributions
A private company may under circumstances solicit political contributions from certain employees and corporate officers. Any contribution must be entirely voluntary. A company cannot condition hiring, termination, raises, or other employment decisions on an employee making – or not making – political contributions. There are, however, prohibitions on “coercing” contributions. Employees who consider themselves “coerced” can file complaints under federal law.
Likewise, public officers and employees can also solicit political contributions, but not from other officers and employees of the same agency, unless the solicitation is part of a larger solicitation to the general public.
Although soliciting political contributions at the workplace may be legal, doing so is dangerous from a human resources perspective. First, solicitation of such contributions may void a private sector, non-union employer’s “non-solicitation policy,” in place to prevent union activity. As stated, employees disillusioned with their employer may later claim they were “coerced” even if they initially agreed their contributions were voluntary.
Tips for Employers
Employers should review their non-solicitation policies to ensure they are valid under current law. These policies may address specific conduct related to elections and political activity. The key is to treat political speech or display of paraphernalia consistently, and not based on content.
Employers should distribute guidance and train supervisors regarding what is acceptable political speech and activity in the workplace. Training should include how to handle employees who claim “First Amendment” rights and how to resolve disputes and disagreements between employees on different sides of the political spectrum.
There invariably will be an outspoken supporter of one candidate or another in the workplace. Supervisors must ensure that any disciplinary action or termination decision is based on legitimate reasons unrelated to the employee’s political activity or association with a particular candidate or view point.
Finally, California employers should ensure that they allow time off for voting in compliance with Election Code section 14001 and post the required notice 10 days before each statewide election.