Donald Trump has made politics an inevitable subject of discussion in most workplaces. He is likely the most polarizing person to be elected president in the modern era. Supporters and opponents are not afraid to clash vigorously and emotionally. Many view his election as vindication. Many view it as a threat to the existence of the republic.
Outside the workplace, friends talk, disagree and fight on social media. Ordinary people, regardless of political stripe, are making their voices heard through protests, counter-protests, calling members of Congress, and more.
This poses challenges to companies that employ California employees. How do you manage employees who can’t get along because of their differing political views? Does disciplining, demoting or terminating a politically active (or politically obsessed) employee invite legal risks?
California Law and Political Activity
Section 1101 of the California Labor Code prohibits employers from adopting or enforcing rules or policies “controlling or directing, or tending to control or direct, the political activities or affiliations of employees.”
Section 1102 prohibits employers from coercing employees through “threat of discharge … to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.”
On top of it all, Section 98.6 broadly prohibits employers from discriminating, retaliating or taking adverse action against an employee based upon his or her political actions activities or affiliations set forth in Sections 1101 and 1102. State law also prohibits employers from taking such action in response to lawful conduct, including political activity, away from the employer’s premises.
There is an absence of case-law clearly defining “political” activity. Merriam-Webster defines “political” as “of or relating to government … or the conduct of government” and “of, relating to, or involving politics and especially party politics.” This is an ambiguous definition that fails to offer much guidance to employers.
Interestingly, advocating forcible overthrow of the government may not be protected “political” activity. In 1948, the California Supreme Court, in Lockheed Aircraft Corp. v. Sup. Ct., noted that Section 1101 does not imply “any intent to protect any individual or group advocating the overthrow of the government by force or violence … the words ‘politics’ and ‘political’ imply orderly conduct of government, not revolution.” This is, nevertheless, a very narrow carve-out to the definition of “political.”
What Risks Do Employers Face Under The Law?
If a court finds that an employer terminated an employee based on his or her political activity or affiliation, the employee is entitled to reimbursement for lost wages and benefits. Arguably, the employee is entitled to other damages, such as for emotional distress, under Labor Code Section 1105.
Employees who prevail on such claims are also entitled to reinstatement. That’s not good for anyone. Setting aside the awkward return to former employment, an employer that takes adverse action against a reinstated employee at a later date is likely to face allegations of unlawful retaliation.
An employer is also subject to a civil penalty of up to $10,000 per employee for each violation. And don’t overlook the criminal penalties: a “person” who engages in prohibited conduct may face a fine of $1,000 and imprisonment for up to a year.
What Should Employers Do To Reduce Their Risks?
Defending your company from litigation is expensive and time-consuming, even if you’re right. But it’s even more costly if you’re wrong. With that in mind, companies that employ California employees should do the following:
First, advise and train managers with decision-making authority to be mindful of arguably “political” employee conduct. Even if you believe you have a strong legitimate, non-discriminatory reason for terminating an employee, consult counsel if you think the employee may view the termination as a response to political affiliation or activity.
Second, when resolving workplace conflict related to political issues, or imposing discipline, it’s risky to tell your employees to “stop talking politics.” Carefully message the rationale for your decisions. If employees need to be separated from one another or disciplined, take action if the conduct substantially interferes with the ability of employees to perform their job duties, and document it as such, without reference to employee “politics.”
Third, if you use employment contracts, consider adding language obligating the employee not to engage in conduct in direct conflict with the business-related interest of your company. Even if employee conduct is political in nature, Section 98.6 permits employers to take adverse action where an employee engages in conduct that constitutes a “material and substantial disruption [to] the employer’s operations.” Such exception, however, only applies if memorialized in an employment contract.
Four, audit your employee personnel policies and handbooks to examine language that might be viewed as directing employees to refrain from expressing specific political views or engaging in political activity, on or off the job. Daniel Ho