Question: With all that is going on with the political scene this year, I would like some guidance. Can I encourage employees to support a certain candidate for President? Can I make hiring decisions based on an applicant’s party affiliation or support for a candidate?
Answer: California law provides some specific guidance for employers in the area of politics. One section of the Labor Code states that no employer shall make, adopt, or enforce any rule, regulation, or policy forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office, or controlling or directing or tending to control or direct the political activities or affiliations of people. Another section of the Labor Code prohibits employers from coercing or influencing, or attempting to coerce or influence, employees to either follow or refrain from following any particular course or line of political action or political activity through threats of discharge or loss of employment. In other words, an employer cannot control its employees’ political views or fire or threaten to fire anyone for their political views. These laws apply not only to employees, but to applicants as well.
Employers must also be alert to discussions employees may be having in the office about politics. This political season sensitive issues like immigration, electing a woman as President, and the ages of candidates are at the forefront. Many individuals feel passionately about these matters and may make unguarded remarks. Others may find quotes from politicians amusing and may repeat them at work.
Employers must remember that in California, they have an affirmative obligation to ensure that there is no harassment or discrimination in the workplace based on protected categories under the California Fair Employment and Housing Act. The list of classes that are protected from harassment and discrimination is very long and includes sex, gender, age (40 and over), national origin, race, ancestry, and religion. If an employee, particularly a supervisor, states that he or she is for or against a certain candidate, employees could perceive that individual as supporting discriminatory views. If an employee quotes language from certain candidates, it could violate an employer’s policy prohibiting verbal harassment in the workplace. It is not a defense for an employee that a political candidate made the statement.
If an employee is expressing his or her political views in a way that could be viewed as discriminatory or harassing, the employer must speak to the individual and explain that the employee is free to support the political candidates and views that he or she chooses, but that the way in which he or she is expressing those views can be perceived as discriminatory or harassing, which violates the employer’s policy.
Another area where an employer can draw the line is if employees are spending their work time promoting a particular political candidate or view. An employer can have policies that require that during working hours, employees engage in their work and not in promoting political causes.
Although an employer cannot restrict an employee’s political views and activities, it must be vigilant that employees not express their views in a way that could be discriminatory or harassing to others at work.