More and more frequently, California employers are making their voices heard on the political issues of the day. And for every employer who voices its opinion publically, there is an employee holding the opposite opinion privately. The question becomes, what protections do employees have from being disciplined— or even fired—for holding political views that are contrary to their employers’?
Everyone knows the First Amendment protects speech, but many don’t realize that some of its protections don’t apply to private entities. But thanks to California’s legislature, employees in California enjoy quasi-First Amendment protections for their political activities, meaning they’re protected from relationship by their private employers for their political activity. Labor Code §§ 1101, 1102.
For example, employers in California cannot make any rules or policies that forbid or prevent their employees from engaging or participating in politics, which includes becoming a candidate for public office. Nor can they establish rules or policies that control or tend to control their employees’ political activities or associations. California even penalizes employers who discipline employees for conduct occurring entirely outside of work, providing relief such as reinstatement of the employees, and potential windfall damages of up to $10,000 as a penalty for the employer’s actions. Labor Code §§ 96, 98.6. These rules provide protections to job applicants, too.
So, what constitutes “political activity?” Courts have interpreted “political activity” to mean basically the same activity as that protected under the First Amendment. The statutes are not “confined to partisan activity,” and include such things as vocal support of a candidate or a cause, wearing symbolic arm bands, and the association with others for the advancement of beliefs and ideas. The major limitation is the activity or association must be somewhat related to a government policy.
This does not mean that employees cannot be fired for refusing to work, or for opting to be politically active during working hours. For example, though the rules prohibit employers from preventing or disciplining employees who run for or are elected to public office, the law allows the employer to fire that employee if that employee’s new position prevents him from doing his job, or meaningfully limits the employee’s availability to work during the day for the private employer.
The bad news is that it is increasingly difficult to determine whether an issue is political or cultural, in part because the nexus between an official government policy and the messaging of such policy may be attenuated. For instance, discussions about kneeling or standing for the National Anthem may be interpreted as either cultural, or political. Though the issue tends to fall down partisan lines, it generally does not involve a message related to a government policy. These ambiguities and the lack of case law combine to create more uncertainty, particularly in a time of increasingly polarized political viewpoints.
Companies stating their support for political movements, such as the National Rifle Association (NRA) or Black Lives Matter (BLM) movement, may be exposing themselves to potential liabilities, particularly by disgruntled employees who hold opposing views and were fired under suspicious circumstances. Consider a case where a Safeway employee was fired for tearing down a poster supporting gay marriage that Safeway had placed in the employee break room. The employee’s supervisors asked him why he tore it down, and the employee told them he opposed the message, a statement that made his supervisors noticeably uncomfortable. Safeway then fired him for destruction of property, ending the employee’s decade-long employment. The court allowed the employee to sue for political retaliation, holding that his termination was suspicious because he was not fired until he told his supervisors why he tore the poster. The suspicious circumstances suggested Safeway had fired the employee because of his political views.
Though courts have interpreted these statutes to offer similar protections as the Constitution’s First Amendment, there is far less caselaw—and therefore far less clarity—on the contours and nuances of these laws. Both employees and employers should seek competent counsel with specific questions on these matters. And attorneys at the Dhillon Law Group are happy to speak with you about these issues.
Dante Quilici is an associate who handles employment litigation and counseling at Dhillon Law Group, Inc.