While discussions regarding politics, political activities or support or opposition to social or political movements are important in certain contexts, differences of opinion can lead to disruptions in the workplace when these discussions or activities occur during work time. In addition, recent legislation has placed restrictions on employers’ ability to promote their own political views or causes among employees. In light of these issues, below are some tips to keep in mind when navigating politics in the workplace.
Employer Policies
Private employers can prohibit employees from discussing politics, asking others about their political preferences, demonstrating, circulating petitions, soliciting votes or contributions, fundraising, or conducting or participating in opinion polls during working hours. However, there are two points to keep in mind when drafting and implementing this type of policy:
- If the employer adopts a policy prohibiting these activities at work, it must apply the policy in a neutral way (i.e., the policy must be consistently applied across all viewpoints).
- If the employer adopts such a policy, it should make clear that employees are not prohibited from discussing wages, hours, or conditions of employment, as noted below.
NLRA Protections
Employers cannot prohibit employees from discussing wages, hours, or conditions of employment (which are protected rights under Section 7 of the NLRA), either at work or on social media. Communications and distribution of materials about political issues related to wages, hours, and work conditions must be permitted when all employees involved are on non-work time unless such communications disrupt operations or are inappropriate in tone or content.
Note that discussions of working conditions can be “political” in nature, and it is possible that this type of “political” speech may be protected under the NLRA. For example, the NLRB recently found that an employee wearing “BLM” on his work apron was protected, concerted activity (i.e., it was racially motivated in opposition to racial discrimination, rather than political activity). Please reach out to your Cook Brown attorney if you have specific questions regarding this rule.
Protections for Employee Political Activities
While employers may have control over what goes on at the workplace, while on the clock, this control does not extend to employee activities while off-the-clock and outside of work. Employers cannot control or direct the political activities or affiliations of employees. Remember, California Labor Code § 98.6 prohibits employers from discharging or otherwise discriminating against employees for lawful conduct occurring during nonworking hours away from the employer’s premises. In addition, Labor Code §§ 1101 and 1102 specifically prohibit employers from interfering with employees’ political activities or discriminating against employees for their political beliefs. For example:
- Employers cannot forbid or prevent employees from engaging or participating in politics or from becoming candidates for public office.
- Employers cannot use the threat of job loss to coerce, influence, or threaten employees to take or refrain from any particular political activity.
- Employers cannot terminate or retaliate against employees for their political activities or beliefs outside of work.
Note that if an employee’s political conduct is unlawful (for example, looting, vandalism, trespassing, etc.), or if it interferes with their ability to perform their job (i.e., refusing to attend work to attend a protest or rally), that activity is not necessarily protected under the law.
Mandatory Political Meetings and Employee Rights
Employers also cannot subject (or threaten to subject) an employee to any adverse action for refusing to attend, participate in, or listen to an employer-sponsored meeting or communication regarding the employer’s opinions about religious or political matters.
Note that employees who attend these meetings must be paid for their time, and employees scheduled to work at the time of the meeting who refuse to attend must also be paid for their work time while the meeting is held.
//
In this rapidly evolving political climate, it is important to remember that California law differs from Federal law and often provides more protection to employees. Reach out to your Cook Brown adviser if you have any specific concerns about employees discussing politics in the workplace to make sure your business is not running afoul of state or federal law.
