Question:
I have an employee that is very passionate about politics and routinely shares his partisan views with the rest of the office. This year, in addition to his usual office lobbying, he adopted an especially antagonistic social media campaign. Employees from both ends of the political spectrum have complained. With Election Day quickly approaching I can only expect his political activity to escalate. Is there any way to curtail his displays of political support?
Answer: Political conversations often involve delicate issues for employees, and what may start as a minor disagreement can quickly lead to a heated argument. Many private employers find that it is in the best interest of the business and employees to place limits on the political speech in the workplace. However, employers must stay mindful of California’s stringent protections for employee political activity.
Labor Code section 1101 prohibits an employer from making, adopting, or enforcing any rule, regulation, or policy that forbids or controls, or tends to control, their employees’ political activities. Also, Labor Code section 1102 makes it illegal for an employer to threaten employees with discharge as a means of coercing or influencing employees’ political activities.
Regardless of whether the policy is enforced, an employer could face liability for having a policy that strictly prohibits political activity in workplace. Furthermore, selective enforcement of a policy may also result in liability if the employee proves it was targeted at political activity or at aimed at a certain political view.
However, employers may adopt policies governing workplace conduct, and can discipline employees for disruptive or antagonistic conduct. Employers have an affirmative duty to prevent harassment or discrimination in the workplace. Although an employer cannot restrict an employee’s political views and activities, it can prohibit an employee from expressing his or her views in a harassing or abusive manner. Since you have received complaints about this employee’s political expressions and conduct, you have an affirmative duty to investigate the complaints and take remedial action to stop and prevent harassing or abusive conduct. Employers can also restrict political speech to employees’ meal and rest periods. In other words, when employees are at work, employers can insist that they work instead of engaging in political or other speech and conduct that is not work related. Additionally, your employee’s late night social media rants may not be protected political speech if they advocate violence or other illegal activity.
Ideally, employers could create a workplace culture rooted in tolerance and respect for all political views. In reality, employee political expression in the workplace presents an increasingly difficult situation that is further complicated by employee use of social media and the tenor of this current political season.
Make sure your employees have the opportunity to go vote. California law permits employees to take two hours of paid leave at the start or end of a shift if the employee does not have sufficient time outside of working hours to vote. Employees must give at least 2 days’ notice to the employer if they need time off to vote. Also, the California Elections Code requires employers to post a notice to employees advising them of their right to take paid leave to vote in statewide elections. Employers must post the employee notice 10 days before a statewide election. You may access the poster at http://www.sos.ca.gov/elections/time-vote-notices/.