As Election Day approaches, politics inevitably seeps into the workplace. What if employees become disruptive, argumentative, annoying, or just plain unproductive on account of politics in the workplace? Does an employer have the right to limit political activities of employees in the workplace?
The answer is: “It depends.” In the private sector, in some jurisdictions, it is unlawful for employers to prevent employees from engaging in political activities or affiliations. But that does not mean employees are free to engage in any kind political activity on the clock, in the workplace.
In California, for example, Labor Code Section 1101 makes it unlawful for an employer to make, adopt, or enforce any rule, regulation, or policy: (a) Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office. (b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees. Labor Code Section 1102 makes it unlawful to 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.
Retaliating against, or terminating an employee for engaging in political activity may give rise to wrongful termination or retaliation claims. For example, in one California case, a newspaper editor who was fired for publicly criticizing public official outside the workplace was held to have valid wrongful termination claim.
But California law does not prohibit employers from limiting political activity inside the workplace while on the clock. After all, employees are paid to do their job, and typically political activity or discussions are not part of the job description. The two employees arguing about Obama and McCain instead of answering phones, taking sales orders, or doing whatever they are paid to do can be told to knock it off and get back to work. Neutral policies limiting political campaigning or other political activity in the workplace may be necessary in order to keep employees productive. Policies or practices that are not neutral (for example, a conduct code giving preference to one political view over another) should be avoided. Moreover, policies that limit union activity (which is in some sense political) may run afoul of state and federal law.
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Christopher W. Olmsted
Barker Olmsted & Barnier, APLC