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Political Activity at Work: What Are the Limits?

Whether the subject matter is a large sporting event or upcoming presidential election, employees naturally bring their opinions, passions, loyalties and arguments into the workplace. As the November 2008 presidential election approaches, the candidates, the political parties, and the various media will continue to stir thought and debate among the nation's voters, most of whom report to a job site.

Employees are not the only individuals at work with political opinions, of course. Owners and management have their own beliefs and perspectives. The issues facing voters preparing to head to the polls in November may engender strong feelings that can result in conflicts at work. When such conflict inevitably occurs, employers should understand their rights and obligations so they may effectively manage the workforce without violating employment laws.

The Right to Engage in Political Activity

The right to engage in political activity is a linchpin of our republic. However, the workplace is not necessarily the appropriate place to exercise these rights. Because many people are so passionate about their political beliefs, the workplace can transform from a positive environment to an environment fraught with tension and animosity when certain issues are raised. The worksite also is not a public square. An employee ordinarily cannot walk away from speech with which she disagrees, unless she wishes to abandon her job. Finally, those with whom an employee disagrees about a particular issue may hold power over his future employment.

Truth be told, many employees feel uncomfortable participating in political discussions at work. A recent poll of business professionals by Beyond.com, Inc. found that almost 50% of those surveyed felt it was inappropriate to discuss politics at work. In fact, those employees who enjoy a good political debate with their co-workers are not necessarily entitled to do so during working hours.

In particularly, private sector employees have limited free speech rights at work because the First Amendment generally does not apply (there is no “government” action in a private workplace). For that reason, private sector employers theoretically could ban all political speech at work. Of course, most employers recognize the value of allowing at least some free speech in the workplace. Employers also understand the difficulty in controlling political speech as practical matter. That said, private sector employers may take a number of steps to regulate employees' political activity if it interferes with the business or has the potential to negatively impact the work environment.

Discrimination Based on Political Affiliation or Activity

The Labor Code protects employees from adverse action based on their political activity or affiliation. Under Labor Code section 1101, an employer cannot forbid or prevent an employee from engaging or participating in politics, or from becoming a candidate for public office. An employer is further prohibited from controlling or directing the political affiliation of its employees. In addition, under section 1102 of the Labor Code, an employer cannot influence or attempt to coerce or influence an employee to follow any particular political activity or action by threatening to discharge the employee. Section 96(k) of the Labor Code further prohibits employers from regulating an employee's lawful off-duty conduct regarding matters protected by the Labor Code.

Employers must be cautious not to discriminate against employees for engaging in political activity. Section 98.6 of the Labor Code protects employees from discrimination for engaging in activities that are protected elsewhere under the Labor Code. Thus, employers must not discriminate against an employee for engaging in lawful off-duty conduct, such as supporting a particular candidate, or because of an employee's involvement with a particular political party or organization. Employers also cannot discriminate against an employee for holding a political view or participating in off-duty campaign efforts for a political candidate. This could include anything from sporting a bumper sticker in support of a presidential candidate to running the local volunteer campaign headquarters.

Other Protected Speech at Work

There are a number of other types of protected speech that may be considered political activity or expression. Employers must be cautious not to infringe on those rights when developing policies restricting political activity at work. For example, employees have rights under section 1102.5 of the Labor Code to disclose violations of state or federal statutes or regulations.

Employees, both union and non-union, also have certain rights under the National Labor Relations Act (“NLRA”) to engage in concerted activities. The NLRA guarantees employees the right to unionize, and at the same time prohibits employers from interfering with those rights, or discriminating against employees who engage in union activities.

Employers should be wary of limiting expression that may be considered protected activity under the NLRA. For example, employees may engage in a discussion about proposed legislation that would affect their wages. On the other hand, employers may prohibit some union activity so long as doing so is part of a uniform employee policy. The National Labor Relations Board recently ruled, for example, that an employer's e-mail use policy prohibiting all non-job-related solicitations did not violate the NLRA by prohibiting the use of the company's e-mail system to conduct union business.

Unlike the private sector, public employees typically enjoy greater free speech rights. There are a number of specific laws that protect public employees' rights to political expression. For example, the Civil Service Reform Act prohibits federal employees who have authority to take, direct others to take, recommend or approve any personnel action from discriminating against applicants and employees on the basis of political affiliation. Similarly, section 45293 of the California Education Code prohibits employers from questioning candidates for a classified services position of any public school system about their political affiliation.

Voting Rights

All employers must provide employees who are eligible voters up to two hours of time off to vote in a statewide election if the employees do not have sufficient time outside of working hours to vote. Employers should note that this time off must be paid under California Elections Code section 14001. The employer may require that the time off be at the beginning or end of the employees' shifts, depending on which would allow the employee to take the least amount of time off work. Also, there is nothing in the statute that allows employers to demand proof of voting, such as a voting receipt. Employers are required to post a voting notice not less than 10 days before every statewide election describing these rights. Employers can find this notice on the Secretary of State's website at http://www.sos.ca.gov/elections/elections_tov.htm.

Under California Elections Code section 12312, employers must also allow employees time off to act as an election official. Unlike the time off to vote, however, employers are not required to pay employees for this time off. There is also no limitation in the statute regarding the amount of time off an employee must be granted for this purpose.

Regulating Political Activity

Employers may implement a number of lawful restrictions on political activity in the workplace, including.

  • Employers can implement a no-solicitation/distribution policy. This type of policy may curtail an employee's attempt to solicit other employees to vote for certain candidates or to hand out political leaflets, at least on work time or in work areas.
  • Employers can implement an e-mail use policy that limits e-mail use to business purposes. This will reduce any political activity employees may engage in with their co-workers through inter-office e-mail.
  • Employers can restrict employees from personal conversations during work time, which would include any non-work-related subject.

Employers also may consider implementing a policy forbidding political campaigning during work hours. Employers should be careful, however, that any such policy does not prohibit other protected activity, and that it does not differentiate between certain political viewpoints.

Jennifer Brown Shaw is a founding partner of Shaw Valenza LLP, a Sacramento/San Francisco employment law boutique that provides employment law advice, training, investigations, litigation, and appeals. Contact Shaw at 916-326-5150 or jshaw@shawvalenza.com.


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