With the presidential campaigns underway, it is likely that some employees may engage in political discussions at work. These discussions can create controversy, animosity and other concerns for employers. Employees have certain protections regarding their right to engage in political discussions along with the right to take time off to vote. Employers, likewise, have certain rights.
Employee Protection For Political Activity
Employees are protected by the Labor Code against adverse employment action due to their participation in political activities.
- Labor Code §1101 prohibits employers from adopting or enforcing any rule, regulation or policy that:
- Forbids or prevents employees from engaging or participating in politics or from becoming candidates for public office.
- Controls or directs, or tends to control or direct the political activities or affiliations of employees.
- Labor Code §1102 provides no employer “shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.”
- Labor Code §96(k) allows employees to bring claims for lost wages when they are disciplined or discharged for lawful conduct (such as participating in elections, campaigns, etc.) during non-working hours.
- Court decisions have stated that the Labor Code “reinforces the substantial public interest in protecting the ‘fundamental right’ of employees to engage in political activity without interference or threat of retaliation from employers.”
Federal NLRA May Apply:
While most employers believe that the National Labor Relations Act (NLRA) only applies to union settings, it does apply to non-union work environments as well.
Section 7 of the NLRA protects workers from adverse employment action if they engage in what is determined to be “concerted activity” which includes actions taken by employees relating to the terms and conditions of their employment, such as discussing workplace safety, wages, benefits or similar issues.
For example, an employee is terminated due to poor performance; the employee had been very vocal about her support for a particular candidate because the candidate supports higher minimum wages. The employee might believe that her vocal support was the cause of her termination and be able to claim a wrongful termination in violation of her Section 7 rights.
Employer Rights to Manage
Taking employee protections into consideration, it is important to remember that employees cannot disregard their work and/or become embroiled in political speech disrupting the workplace. Employers are still allowed to manage performance, attendance and effectiveness at the job.
Employers also have the right to manage an employee’s time while “on the clock” and restrict the use of company computers and company time for non-work-related activity – without specifying the restriction is only for political speech.
It is critical that policies must be consistently applied so if employees are permitted to send out emails regarding their children’s school fund-raisers, it may be necessary to permit employees to send out emails requesting contributions to their choice for political office.
Employers are also permitted to communicate with employees about issues, regulations, legislation or ballot measures that will have an impact on the workplace, jobs, the economy and the employees themselves. However, employers should not seek to:
- Control or direct the political activities of employees “through or by means of threat of discharge or loss of employment”;
- Coerce employees to support or oppose a ballot measure;
- Reward or punish employees for their political activities or beliefs (or threaten to do so);
- Put any political messages in or on employees’ payroll envelopes: No paycheck stuffers.
Time Off To Vote
California law provides that an employee may take up to two (2) hours of paid working time off to vote if they are unable to vote outside of working hours. An employer can require that the time off be taken at the beginning or end of the regular working shift, whichever gives the employee the most free time for voting and the least time off from working.
The employee must notify the employer at least two (2) working days in advance to arrange a voting time. However, with the extended polling hours, unless an employee was working a 10 hour shift, it is unlikely that paid time off to vote would be required.
Employer Posting Obligations
Employers must display a poster describing voting leave requirements at least 10 days before every statewide election.
This information is intended to provide guidance in the area of employment law and is provided as a service of the Firm. While every effort has been made to ensure the accuracy of the information contained in this bulletin, it is not intended to serve as “legal advice”. If additional information or assistance is needed on any of the topics contained in this informational package or any other matter, please feel free to contact Cynthia Elkins for further information. All rights reserved. © 2016