With political campaigns well underway for the 2020 primaries and general election, debates over political issues are certain to intensify in the coming months. While every presidential election prompts the expression of political opinions, the current climate seems to be as polarizing and strident as this country experienced during the 2016 elections, if not more so. Discussions about politics will surely occur among employees in the workplace, with firm opinions expressed by persons of all political persuasions. This has many employers asking what they can do to maintain a productive and drama-free workplace.
Most employers are generally familiar with the laws that prohibit discrimination based on race, sex, age and certain other protected characteristics, but many are not aware that the law also protects employees in their exercise of political rights. Specifically, California Labor Code Sections 1101 and 1102 prohibit employers from attempting to control or direct the political activities or affiliations of their employees, and prohibit employers from discharging or taking other adverse action against employees for their political activities.
The laws protecting the right to political activity and expression can be particularly problematic for employers because they impose liability for violations committed by managers and employees, and violations of the law constitute a criminal offense in addition to subjecting the employer to fines and civil liability. Prudent employers should assure that their managers understand the laws that protect employees in their exercise of political rights.
While employers are forbidden from attempting to control the political opinions and affiliations of their employees, a critical distinction exists between interfering with the political rights of employees and insisting that employees focus on their jobs (and permit their colleagues to do the same) during work hours. All employers have a legitimate interest in preventing any non-work activity (be it political discussion or conversation about a less controversial topic) from interfering with the efficient operation of their businesses. Employers may not be able to control the political opinions or affiliations of their employees, but they can generally insist that employees focus on their jobs during work hours. If political discussion impairs productivity (either of the speaker or of the person(s) to whom the political speech is addressed), management can intervene. An added layer of complexity may exist if the political speech relates to a union issue; employers should proceed with particular caution (and should generally confer with counsel) whenever considering action in response to speech or activities related to collective bargaining.
Employers are also entitled in most instances to prevent employees from posting any written or printed materials in the workplace, including materials of a political nature. Employers should be consistent in their enforcement of any policy they may adopt against postings in the workplace, however. If an organization refuses to permit a posting concerning a particular issue or point of view, it should similarly refuse to allow other political postings.
What Should Employers Do Now?
California employers can anticipate an increase in political discussions in the workplace that may become divisive and affect employee productivity and harmony. Employers may prepare themselves by taking these steps:
- Adopt a “standards of conduct” policy or update any such existing policy as necessary: Employers may implement or revise their “standards of conduct” policies that instruct employees to observe professional conduct in the workplace, such as avoiding the use of rude, abusive, or disrespectful language. These policies should be applied to all employees irrespective of political affiliation and in all contexts—political or otherwise—to maximize their effectiveness and to reduce the risk that it will be interpreted as a rouse for political discrimination or retaliation.
- Remind employees of acceptable conduct in the workplace: Employers are encouraged to remind employees about acceptable behavior in the workplace and the need to maintain a professional and respectful environment. This may help curtail political discussions from becoming too disruptive or heated.
- Effectively train managers: Effectively training managers about the laws that protect employees in their exercise of political rights is likely to be helpful in addressing any discord that arises in the workplace and in reducing risk of employer liability for violations of the law.
Employers encountering issues related to political expression or affiliation should confer with counsel before taking any action against an employee. If you have questions about the laws protecting employees in their exercise of political rights, or any other issue relating to employment law, please contact one of our attorneys:
| Shareholders | Associates | |
| Eric C. Bellafronto | Ernest M. Malaspina | Shirley Jackson |
| Karin M. Cogbill | Richard M. Noack | Sean Bothamley |
| Jennifer Coleman | Daniel F. Pyne III |