Seyfarth Synopsis: Though the election is over, politics continue to boil watercoolers in workplaces across California. So while employers presumably know that they must provide employees with time off to vote—we hope!—they also must recognize that their employees' political rights are not confined to the polling place.
Employees Have a Broad Right To Engage in Political Activities
A peculiar California statute (section 1101 of the Labor Code) prohibits employers from making, adopting, or enforcing any rule, regulation, or policy that prevents employees from engaging in political activities or that tends to control their political activities or affiliations. The protected political activities are not limited to running for office or stumping for a candidate. Courts have interpreted "political activity" broadly to include non-partisan activities, including wearing symbolic armbands and associating with others to advance beliefs and ideals. Employers thus should avoid taking adverse actions against employees for participating in protected political activities.
Of course, political activities (whatever they may be) do not occur in a vacuum. Employees who engage in otherwise protected political activities may still be subject to discipline if their conduct violates legitimate employer policies. In such instances where an employee's conduct provides a legitimate, non-political justification for disciplining an employee, employers may act, but should ensure that their personnel policies are applied evenly across the political spectrum.
One prominent California technology company was recently hit with a class action lawsuit accusing it of discriminating against employees with "perceived conservative political views, and activities," after the company fired one of the class-action plaintiffs for "perpetuating gender stereotypes" in a written communication he had circulated internally within the company.
Businesses Cannot Coerce Their Employees Into Adopting Company Politics
In this era of corporate activism, it is seemingly more common than ever for businesses to stake out public positions on hot button subjects. They cannot, however, force employees to toe the company (political) line. California employers must not attempt to influence their employees' political activities by threatening termination for voting the wrong way. Employers that choose to take a political stance must therefore provide their employees with space to differ.
What Can Happen to Businesses that Violate the Law?
The consequences for failing to follow these requirements can be severe. Employers may be liable for lost wages, damages for emotional distress, punitive damages, and a civil penalty of up to $10,000 for violations.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.