Even though the 2016 Presidential election is months in the rear view mirror, controversy continues, with the news each day describing what looks like a three ring circus in Washington D.C. Pundits have opined that our country is polarized by politics as never before: cities vs. rural areas; college educated vs. high school educated citizens; red states vs. blue states, etc. As a result, politics remains a major topic of discussion between friends, relatives and, of major importance to us, co-workers.
What options are available to employers when these disputes spill over into the workplace? What can an employer do if two or more employees get into heated, boisterous, and perhaps even physical altercations over issues such as the new President’s actions or statements, nominations for cabinet positions, votes taken in the Congress, or the Supreme Court vacancy?
As shall be explained, an employer’s permissible reactions are generally limited to prohibiting political activity only when it impacts the work environment, but even then ideally only if the employer has in place and has communicated to its employees rules requiring that political activity not interfere with the proper functioning of the workplace.
First of all, it needs to be noted that political opinion is not a protected classification under either federal or state anti-discrimination laws. You will not find it listed in the California Fair Employment and Housing Act or the 1964 U.S. Civil Rights Act. However, political activity tied to a protected classification could lead to charges of discrimination or harassment, and could require an employer to conduct an investigation and to take appropriate remedial actions. As an example, an employee with a disability might claim discrimination or harassment for speaking out about President Trump’s mocking of a disabled news reporter during the campaign. Another example could be a claim made by a Latino employee who alleges retaliation for speaking out against the President’s plan to build a wall along the U.S.-Mexico border.
From a Constitutional viewpoint, the First Amendment protects employee speech if it is on a matter of “public concern” and outside the scope of the employee’s official duties. In such circumstances, Courts apply a balancing test to determine if the public employer can nevertheless restrict the speech. Also, in California, specific statutory provisions further limit the right of public employers to restrict political activities by their employees. Government Code section 3203 severely limits the right of cities, counties and most districts to place any restriction on the political activities of employees. One clear exception is that employees are totally prohibited from participating in political activity while in uniform. (Gov. Code sec 3206.) Labor Code section 1101 prohibits employers from forbidding or preventing employees from engaging or participating in politics.
Another caveat concerns situations where a political discussion or argument among employees touches on areas involving employee benefits or working conditions. An employer’s action to stop such discussions could amount to an unfair labor practice as employees have the right to discuss issues relating to their wages, hours and other terms and conditions of employment.
Of course, political spats that involve physical altercations should be addressed with existing agency rules prohibiting workplace violence.
Nonetheless, the Government Code does allow local agencies to adopt rules and regulations that prohibit or otherwise restrict employees from engaging in political activities during working hours and/or on the agency’s premises. (Gov. Code sec 3207.) However, in order to avoid applying this provision too broadly, the definitions of “politics” and “activity” need to be examined. California’s statutes provide no guidance in this regard. The California courts have had only a few opportunities to define “politics,” and have adopted a very broad definition in those situations where they needed to do so. Politics is not limited to supporting or opposing a candidate; it includes advocating or opposing a position or policy on any issue of public concern, such as civil rights, employment discrimination, war, foreign affairs, you name it! The dictionary definition of “activity” is even more broad: “behavior or actions of a particular kind” or “the quality or state of being active” with “active” defined as “characterized by action rather than by contemplation or speculation.”
In light of all these considerations, the following is recommended:
The bottom line is that employers need to tread lightly in dealing with these sorts of situations and limit responses to situations which unduly interfere with getting the agency’s work done or which cross the line into areas protected by law, such as those where a protected classification is implicated. Legal counsel should be consulted if there are any questions that arise.
Jeff Freedman, Partner in the Los Angeles office of Liebert Cassidy Whitmore, has over forty years of experience representing public agencies as well as private companies in all areas of labor and employment relations law. He can be reached at jfreedman@lcwlegal.com.
This article was published in the May 2017 issue of the Municipal Management Association of Northern California (MMANC)’s Municipal Magazine.