WORKPLACE LAW -
Political Activity in Workplace

Question:

Politics around our workplace are starting to heat up. One member of our staff is an Obama campaign worker, and has posted Obama bumper stickers all over her office. Our industry tends to be more conservative, and I have heard several derogatory comments during our weekly management meetings. There has been discussion of banning all political messages from the office. Can we do this?

Answer:

Your question is very timely. Employers who are concerned about the current politically charged environment in California should be very careful in how they attempt to control political expression in the workplace. California Labor Code section 1101 prohibits employers from making, adopting, or enforcing any rule, regulation, or policy that forbids or controls, or tends to control, their employees’ political activities. Also, Labor Code section 1102 makes it illegal for an employer to threaten employees with discharge as a means of coercing or influencing employees’ political activities. The courts have interpreted these statutes quite broadly, and employers should understand their ramifications.

First of all, a “policy” prohibiting or controlling employees’ political activities need not be published to be illegal under Labor Code section 1101. A disgruntled employee need only show that the policy in fact exists. Employers can find themselves liable for “unofficial” policies created by managers who discriminate against employees with unpopular political affinities, or who are otherwise trying to control political activities of their employees. However, employers are permitted to adopt policies governing workplace conduct.

Other more recently added sections of the Labor Code add teeth to sections 1101 and 1102. Under section 96(k) employees may sue for lost wages if they are discharged, demoted or suspended for lawful conduct occurring during non-working hours and away from the employer’s premises. One particular area that has attracted much interest is whether bloggers are protected by 96(k). No court has yet decided this question. This is an area of the law where the rights to free speech, the rights to privacy, and the rights of employers can collide. For instance, it is unclear whether a blogger can be fired for using the Internet to complain about his employer or industry practices.

Also, under Labor Code section 98.6, an employee cannot be discharged or demoted for either engaging in political activities or filing a bona fide claim of political discrimination with the Labor Commissioner. An employer who refuses to reinstate such a discharged or demoted employee may himself be guilty of a misdemeanor.

It is also important to understand that “political activities” are broadly defined under the law, and include a wide array of activities beyond obvious partisan politics, such as running for office or displaying an Obama sticker. For example, the courts have held that employers may not prohibit their employees from wearing armbands, advocating for union membership, or criticizing public officials. Neither can an employer require political activity, such as donating to a certain cause. Being openly gay is also considered a political activity for the purposes of this law. Employers are prohibited from discriminating in their hiring, promotion, and firing decisions against people who are perceived as being gay.

However, there are some practical steps you can take to make sure that your employees’ political activities do not disrupt the workplace.

  1. Consistently enforce your workplace conduct policies. For example, if your policies prohibit personal items from being displayed in the workplace, a political sticker would violate the policy, and the employee could be asked to remove the sticker. Similarly, if your dress code requires professional business attire, buttons and armbands may violate the policy. As long as the policies are consistently enforced and applied to all types of personal items or unprofessional accessories, the risk of a claim is reduced.
  2. Educate managers and employees, and provide training concerning unacceptable workplace conduct, and how to respond to it. Make sure managers know that employees’ political activities cannot be part of any employment decision, whether to hire, promote, or fire an employee. Make sure employees know what types of conduct violate the company’s policies.

The key is to exercise caution in managing your employees’ political expression, and to only take action when the activity violates an established, non-discriminatory workplace conduct policy that is consistently enforced.
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