Question: I have a strict “no politics” policy at my business, but I learned that two of my employees attended a political rally over the weekend.  One of the employees missed their scheduled shift to attend the rally and the other was arrested and charged with unlawful assembly.    Can I fire these employees because of their participation in this rally?

Answer:   California law allows private employers to place certain restrictions on employees’ political activities at work, including prohibiting the use of their positions and employer-provided equipment for political expression.  Similarly, employers may prohibit signage, clothing and other items that employees may use to communicate a political or protest message.  However, California law provides broad protections for employee political activity occurring outside of the workplace.

California Labor Code Section 1101 states, “No employer shall make, adopt, or enforce any rule, regulation, or policy:

  • Forbidding or preventing employees from engaging or participating in politics.
  • Controlling or directing, or tending to control or direct, the political activities or affiliations of employees.”

Section 1102 of the Labor Code provides, “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.”  Additionally, Labor Code sections 96(k) and 98.6 protect employees from retaliation for “lawful conduct” occurring during non-working hours away from the employer’s premises.

An employee’s participation in a political rally would likely qualify for these protections.  That said, an employer may still discipline or fire an employee if their political activities violate employer policies.  Furthermore, the law does not require employers to provide time off to employees who wish to attend a rally, and employers may discipline any employee who violates internal attendance or leave policies when done so consistently. Selective enforcement of a policy could result in liability for retaliation if the employee shows the discipline was targeted at political activity or aimed at a certain political view.

Employees are entitled to these protections even if the employee’s participation in a march, protest or rally leads to the employee’s arrest.  California Labor Code 432.7 prohibits employers from asking job applicants and employees about an arrest that did not lead to a conviction and bars employers from using an employee’s arrest pending trial as the sole determining factor in making an adverse employment decision against them.

Employers in this situation should investigate the facts and circumstances of the employee’s arrest to determine whether conduct leading to the arrest violates the employer’s policies or is unlawful. Police may arrest participants in a march, protest or rally, but some of these arrests do not result in charges or convictions, so the fact that an employee is arrested will normally not by itself justify termination of employment.

Employees’ social media posts that violate an employer’s harassment, discrimination and retaliation prevention or employee safety policies require a different analysis.  Private employees do not have an unfettered First Amendment right to free speech and may be held accountable for social media conduct.   Some examples of posts that may warrant disciplinary action or termination include:

  • Hate speech regarding any protected characteristic or group;
  • Speech that creates a hostile work environment; and
  • Threats to employee health and safety.