Most employees take steps to separate their work lives and their personal political activities. Social media and the prevalence of telework during the COVID-pandemic make this boundary more difficult to maintain, however.
Recent events at the U.S. Capitol brought renewed focus to an interesting employment law question: can employers lawfully discipline employees for engaging in political activities outside the workplace? The answer depends on several factors, including whether the employee works for a public or private sector employer, the nature of the activity, and where the activity takes place.
Employees in the public sector enjoy the protection of the U.S. Constitution’s First Amendment. The First Amendment generally prohibits government employers from restricting their employees’ free speech. “Speech” includes not only words, but also actions, such as engaging in peaceful assembly. Of course, certain categories of speech are given lesser or no protection by the First Amendment, including obscenity, fraud, speech that incites unlawful action, EEO-based slurs and comments, and threats of violence.
Private employers are not constrained by the Constitutional right to free speech. However, California’s Labor Code provides certain protections for employees in the private sector. Section 96(k) provides protections for employees who are terminated for “lawful conduct occurring during nonworking hours away from the employer’s premises.” Few courts have interpreted this provision, but on its face, it restricts an employer from taking action against an employee for engaging in peaceful protests, for instance.
Labor Code section 1101 forbids an employer from interfering with workers who participate in politics or become candidates for public office, and from directing their political activities or affiliations. Labor Code section 1102 forbids an employer from disciplining an employee for adopting or following any particular political action or activity. Courts have interpreted these protections broadly to include all expressions of political beliefs, and even to non-partisan activities, such as voicing support for environmental causes.
Employers run afoul of these protections when they do not separate their personal beliefs from the political activities of their employees. Some employers mistake “at-will” employment for the ability to hire only employees who share their personal convictions. But, employers may not terminate an employee for unlawful or discriminatory reasons, including reasons based upon an individual’s political beliefs or activities. For instance, a manager cannot lawfully refuse fire an employee who espouses political beliefs contrary to the manager’s. If that same applicant were observed physically attacking law enforcement during a political rally, however, the manager likely could consider that fact in making an employment decision.
On the other hand, a California employer may not take negative action against an applicant or employee based on that individual’s arrest record. Several individuals present at the U.S. Capitol assault later were arrested for their conduct. An employer’s first instinct might be to rid itself of a someone it perceives to be a violent insurrectionist. However, California Labor Code section 432.7 forbids an employer, public or private, from relying on the mere fact of an arrest to make an employment decision. Instead, the employer should independently review the circumstances of the arrest, and then determine the appropriate course of action. If an impartial review of the facts reveals that an employee engaged in misconduct inconsistent with the employer’s policies or mission, then the employer generally may take action. Similarly, the employee’s refusal to participate in the investigation may be grounds for discipline or termination.
What about employees who engage in political activity at work? Even businesses that support their employees in engaging in the political process away from work may have a different perspective when those same employees express controversial political views at work. In 2018, a Google employee posted a 10-page manifesto to an internal message board stating that women are underrepresented in the tech field because of “personality differences” between the sexes. The employee referenced women’s “neuroticism” as an explanation for the fact that there are fewer female workers in high-stress jobs. The company quickly fired the employee and he sued, claiming that Google has an “open hostility for conservative thought.” The employee later dismissed the case, but debate has continued about whether Google’s decision to terminate the employee violated California’s protections for employees who engage in political discourse at work.
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Private sector employers may restrict their workers from using work time and resources to advance their personal political agendas. Although the federal Fair Labor Standards Act protects workers who engage in union-related activities, a private employer may, for instance, discipline an employee who distributes political fliers to colleagues while on the clock.
A more complex issue exists when an employee is expressing a political affiliation in the workplace without infringing on work time. Can a retailer lawfully prohibit employees from wearing campaign buttons or facial coverings with political messages? Maybe, but only if the employer applies neutral policies and does not adopt content-based restrictions (for instance, a “Make American Great Again Hat” is not acceptable, but a “Black Lives Matter t-shirt is celebrated). An employer may adopt a policy that prohibits the wearing of all buttons and “slogan” clothing, but it must ensure consistent enforcement of that policy.
Taking a negative employment action against an applicant or employee who engages in political activity can result in substantial liability in California. Employers should carefully consider the laws in this area, and consult with legal counsel before proceeding.