Political Speech In The Workplace
As the November 3rd 2020 election fast approaches, employers are forced to deal with political speech in the workplace. In the past, political speech became a problem when it affected a worker’s ability to perform assigned duties, negatively affected a business’ sales, or when an employer imposed their political views on their employees.
The COVID-19 pandemic adds additional challenges for employers, especially with respect to employees who work virtually via video conferences. Unfortunately, adopting a “see no evil, hear no evil, speak no evil” approach will not work, and employers must clarify their policies to address the new work environment, even when that environment is the inside of the homes of its employees who work virtually using video.
State and federal law protects political speech.
The National Labor Relations Act (“NLRA”)
Enacted in 1935, the NLRA was designed to protect private sector employees who engage in collective bargaining by making it unlawful for employers to discipline or terminate employees who associate or organize in furtherance of their efforts to collectively bargain with their employer. See 29 U.S.C. § 151 – 169, as amended. Employees who speak to other workers about collective bargaining rights, unions, the right to unionize and/or bargain collectively, are engaging in protected speech.
The NLRA also protects workplace political speech that speaks to a candidate’s position on collective bargaining, unions, or the right to unionize. Employees have the right to discuss workplace conditions under the NLRA and a conversation about a particular political party or candidate may be protected if it involves how that party or candidate might lead to better or worse conditions of employment.
Applicable California Law
In California, workplace political speech is protected by the Fair Employment and Housing Act (“FEHA”) as well as Labor Code §§ 1100 to 1103, which provide:
Section § 1101. Rule, regulation or policy as to political activates or affiliations No employer shall make, adopt, or enforce any rule, regulation, or policy: (a) Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office. (b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees.
Section § 1102. Coercing or influencing political activities of employees No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.
Section 1103. Violation of chapter as misdemeanor; Punishment Any employer who violates this chapter is guilty of a misdemeanor punishable, in the case of an individual, by imprisonment in the county jail not to exceed one year or a fine of not to exceed $1,000 or both, and, in the case of a corporation, by a fine of not to exceed $5,000.
In short, employers are prohibited by law from terminating or discriminating against any employee for engaging in political activities and an employee may recover from his or her employer for any injury suffered as a result of such a violation. See Lab. Code §§ 1101-1104.
An employer may discipline or discharge an employee for legitimate, business-related reasons. Employers can take action consistent with its written policies and practices if, for example, an employee’s political expression interferes with productivity, disrupts other co-workers, or hinders the goals of the company. However, employers violate discrimination laws when there is evidence of disparate treatment, inconsistent application of workplace policies, or retaliatory treatment based solely on an employee’s political activity.
What Is An Employer To Do?
Can an employer require its employees to remove political insignia, buttons, etc.? Do dress codes that require employees to “dress professionally” violate federal and/or California law if campaign buttons can’t be worn at work? Does the workplace extend into an employee’s home? Does the employer may require employees removed political oriented clothing, button, signage from their home? What is an employer to do?
The answers can be tricky and will vary from employer to employer, but there are prudent steps that any employer can take to make sure that political activities do not disrupt the workplace.
First, establish written policies and practices to identify and prevent potential problems with protected political activities. Second, consistently enforce workplace policies. As long as workplace policies are consistently enforced across all employees, the risk of liability is reduced. Third, educate supervisors, managers, and employees with training about unacceptable workplace conduct and the proper way to respond to it. Ensure that managers know that employees’ political activities cannot be part of any employment decision, whether to hire, promote, or fire an employee. At the same time, make sure company policies address the virtual work environment and that employees know what types of conduct violate the company’s policies. Remind all employees that political speech should not prevent them from performing assigned work, nor should it become a distraction for co-workers, clients or customers.
Employers must exercise caution in managing your employees’ political expression, and only act when the activity violates an established, non-discriminatory workplace conduct policy consistently enforced.
Should you have questions concerning political speech in the workplace, please contact Doug Wade at (714) 453-9144 or email doug@dmwadelaw.com.
The materials contained herein are for informational purposes only and not for the purpose of providing legal advice. For advice about a particular problem or situation, please contact an attorney.