WORKPLACE LAW -
Political Activity and Voting

Question:

With the election coming up, I have questions about politics in the workplace. I was raised to avoid discussing politics in the workplace as well as at the dinner table. I have a co-worker who disagrees with my rule, and has been actively campaigning for his chosen candidates and issues during the workday. Does he have the right to argue with his colleagues, wear campaign buttons and leave pamphlets on our desks? Also, this colleague says that he will be carrying a political sign for a couple of hours on voting day, since our employer “has to” give him time off to vote. What does the law say about providing employees with time off to vote?

Answer:

Those are good questions, especially as the election is now only days away. Generally speaking, employers are entitled to adopt policies to ensure that their employees are working—and not politicking—during paid working hours. An employer should not be expected to compensate employees for engaging in political activities. Similarly, private employers have broad rights to ensure that employers’ own resources and property, including e-mail systems and bulletin boards, are not used for employees’ personal political agendas. Finally, employers may limit those employees who interact with the public from wearing campaign buttons to avoid the appearance that the business is endorsing a particular candidate.

Unlike public sector employees, private sector employees do not have a First Amendment right to engage in ‘‘free speech’’ in the workplace. The First Amendment protects against the government’s abridgement of speech, but does not apply to private employers that are not engaging in ‘‘state action.’’ Therefore, employees of private sector employers have no First Amendment right to be free of employer-imposed restrictions on free speech while at work. Many employers explain this in their employee handbooks or other policy statements, so that employees are aware that they have no constitutional right to engage in political activity in the workplace.

Also, in California, employees without employment contracts are deemed to be ‘‘at will’’ employees. Such ‘‘at will’’ employees generally can be terminated for any reason, or no reason at all, unless there is a specific statutory or other recognized exception to the ‘‘at will’’ principle. In theory, therefore, private employers could terminate at will employees who engage in political activity off the job that the employer dislikes. In order to mitigate the effects of the ‘‘at will’’ principle as it pertains to political activities, various states have enacted statutes protecting employees from termination or adverse job actions based on their political affiliation or activity. In California, the Labor Code provides that no employer can forbid or prevent employees from engaging in or participating in politics, nor can an employer control or direct the off duty political activities of employees. Employers also may not coerce employees through threats of termination to adopt or refrain from adopting any political activity.

Employees in California are also entitled to take up to two hours off, with pay, to vote in a governmental election or referendum. However, the law specifies that the time off must be taken at the beginning or end of the shift, and only if they cannot get to the polls before or after their shift. Given that the polls are open from 7:00 a.m. to 8:00 p.m., most employees can vote before or after work. Keep in mind that employers may require their employees to provide two workdays advance notice of this need to take time off to vote.

In summary, while your coworkers cannot be prevented from engaging in political activity when they are off duty, their workplace discussions and actions can be restricted by your employer, if done properly. To that end, your employer may wish to implement a “code of conduct” with regard to political issues and elections that addresses matters including:

  • use of company facilities;
  • use of e-mail and public areas;
  • anti-solicitation rules in the workplace;
  • campaign buttons;
  • pamphleteering on company premises;
  • compliance with rules prohibiting corporate campaign contributions through the use of corporate resources; and
  • guidelines concerning off-the-job political activity, especially if it is of a nature that may undermine the employer’s business interests.

If your employer seems unaware of the amount of political discussion and activity taking place in the workplace, you are well within your rights to raise the issue with your supervisor and to ask that some guidelines be put in place.
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