Question:

I am the owner of a business and my friend is running for political office. I would like to distribute literature at work and encourage my employees to vote for this candidate who I believe would do a great job if elected. Can I lawfully lobby for my employees to support this candidate?

Answer:

Generally employers should avoid expressing support for a particular candidate in the workplace. There are two Labor Code sections that specifically prohibit an employer from regulating or influencing the political activities of employees. Labor Code section 1101 prohibits an employer from forbidding or preventing employees from participating in politics. It also prohibits an employer from controlling, directing, or tending to control or direct employees’ political activities. Labor Code section 1102 prohibits an employer from coercing, influencing, or attempting to coerce or influence 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. A violation of either of these code sections is punishable as a misdemeanor.

Additionally, Labor Code section 96(k) prohibits employers from taking adverse employment action against an employee for lawful conduct occurring during non-working hours away from the employer’s premises. Because participating in the political process or supporting a candidate of one’s own choosing is lawful off-duty conduct, the additional protection of section 96(k) also applies. An employer must be cautious not to subject itself to claims that it retaliated in some way against an employee who failed to support the candidate selected by the employer.

Despite the Labor Code prohibitions against employer influence relating to political activity, there is some case law to suggest that Labor Code section 1101 does not deprive an employer of the right of free speech or prevent the employer from stating political beliefs or views amongst employees. However, employers who promote their political agenda in the workplace run the risk of suit by employees under the Labor Code. By stating which candidate an employer supports, the employer may be accused of attempting to control or direct political activities of employees which, if proven, would be a clear violation of the Labor Code. An employer also opens itself up to potential liability if it takes adverse employment action against an employee who does not agree with the employer’s politics or if it threatens to do so in an effort to influence an employee. Further, once an employer espouses its political views, the employer opens the door to employees with differing views and views on other issues from similarly publicizing their opinions in the workplace. Most employers wish to avoid such conflict in the workplace and the resulting decrease in productivity.

For all of these reasons, it is generally recommend that employers refrain from promoting their political beliefs in the workplace.
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