In a year of extraordinary events, this election has been more divisive and controversial than any other in recent history. Many employers are grappling with how they should manage political expression in the workplace. An employee may come to work wearing clothing items supporting a political cause, or may seek to discuss political topics or solicit co-workers to support candidates or political causes. Given that many of the current political movements involve deeply personal issues that employees—on both sides—are passionate about, employers have cause to worry that political expression at work will cause disruption and distraction in the workplace. Conversely, some employers do not want to remain neutral and wish to promote political engagement in the workplace.
In both instances, an employer should be aware of the legal consequences of regulating or promoting political expression in the workplace. We pose and answer three questions that have arisen in these highly divisive times.
1. Can employers prohibit political expression in the workplace if that expression is likely to be disruptive?
Yes, but the safest manner to regulate such expression is to implement a blanket, neutral prohibition on political expression at work. The policy must prohibit political expression of all political views. If a policy is directed at only one type of political view or leaning, then the employer runs the risk of facing liability under California Labor Code Sections 1101 and 1102.
California Labor Code Section 1101 essentially prohibits employers from preventing employees from engaging in political activity as well as from controlling the political activities of employees. Under California Labor Code Section 1102, an employer cannot force an employee to follow or refrain from following a particular political action.
In practice, this may come up in a situation where an employer prohibits an employee’s political expression because it is an unpopular viewpoint and then later the employee claims that a disciplinary action, such as a termination or being passed over for a promotion, was taken due to their political expression.
Unlike other similar protections under the Labor Code, employees have a private right of action for violations of Sections 1101 and 1102. An aggrieved employee may seek damages from the employer. (CA Lab. Code §1105; Lockheed Aircraft Corp. v. Superior Court of Los Angeles Cty., 28 Cal. 2d 481, 486 (1946)). An employer may also be found guilty of a misdemeanor and face imprisonment or a fine (CA Lab. Code §1103).
As such, a blanket and neutral policy is recommended. Indeed, in 2008, the National Labor Relations Board (NLRB) supported such policies. But note that, since then, the NLRB has further explained that these types of policies cannot infringe on employees’ rights to discuss conditions or wages. We discuss this limitation further below.
2. What rules can or should an employer adopt to prevent disruption caused by political expression in the workplace?
Any policies should be viewpoint neutral. They should also be applied consistently and uniformly. Policies regulating political expression in the workplace should strive to be specific and narrowly tailored. For instance, the policy may specify that political expression is prohibited as it applies to clothing, pins, hats, mugs, employer bulletin boards, intranets, and other office resource spaces.
At first glance, employees may question whether such policies violate employee rights, such as freedom of expression. However, employees are not entitled to First Amendment rights when their employer is a private company. If the employer is a public entity, such as a school or a public agency, a balancing test regarding the employee’s expression rights is applied.
The National Labor Relations Act (NLRA) also serves as a backstop to these policies. Employees are entitled to engage in communications and expressions that involve work conditions or wages. The NLRB has previously distinguished between pure political expression and actions protected under the NLRA. Ultimately, a policy regulating workplace political expression that is narrowly tailored should not run afoul of the NLRA. Consult with employment counsel to develop this type of policy.
Although these types of political expression policies will limit even popular political views, a neutral environment will minimize the risk of liability for the employer.
3. Can an employer promote political expression in the workplace, such as promoting a get-out-the-vote campaign?
Yes, as long as the employer adopts a neutral approach to promoting political engagement. In other words, the employer should not encourage employees to vote for specific candidates or parties. Rather, an employer can urge employees to exercise their right to vote regardless of political views.
It is also recommended that employer-led efforts like this occur during a time when employees can voluntarily participate. Mandatory staff meetings would not be an appropriate setting, for instance.
In the last few elections, several nationwide companies, such as Tyson Foods, Levi Strauss & Co, Walmart, and Gap, Inc., encouraged employees and customers to vote through efforts like get-out-the-vote campaigns. If an employer feels this is an appropriate route to take in this election, then it must simply keep in mind that neutrality is the safest approach.