The Dos and Don’ts of Politics in the Workplace

The Dos and Don'ts of Politics in the Workplace

As a child, I was told that there were three topics you should never discuss at a dinner party: religion, politics, and money. While you may or may not agree with this advice, what's your opinion about discussing politics in the workplace? With national attention on the upcoming election, California employers need to revisit the dos and don'ts when it comes to politics and understand employee rights and protections.

Considerations When Promoting a Political Message

Many companies have taken a stance on social justice issues, whether internally or to the public. Whether promoting a political viewpoint or advocating for a candidate is right for your organization may depend on factors such as customer and client perceptions, impact on employee morale, and alignment with your company's values.

Private employers are generally permitted to engage in political speech, however, they cannot attempt to coerce or control the political activities of their employees. Notably, Labor Code sections 1101 and 1102 prohibit employers from making, adopting, or enforcing any rule or policy:

• Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office;
• Controlling or directing, or tending to control or direct the political activities or affiliations of employees; or
• Using the threat of job loss to coerce, influence, or attempt to coerce or influence employees to take or refrain from any particular political activity.

California employers should also be aware of a potential bill that has already been presented to the Governor for signature, SB 399, which, if passed, would prohibit employers from taking adverse action against an employee (or threatening to do so) because the employee declined to attend or listen to an employer meeting/ communication regarding the employer's opinion on political or religious matters.

At a minimum, if your company promotes a political message on your website or in the media, ensure that your message is not coercive and that you do not attempt to influence your employees' political activities or beliefs. And, if SB 399 passes, proceed with caution in holding any meetings or sending communications to employees regarding your organization's political opinions.

Employees and Free Speech Protections

One question that employers often ask is what employees' rights are around free speech. We have an easy answer. The First Amendment's free speech protections do not extend to private employees. Therefore, employers are generally permitted to ban the use of political slogans and other speech and may prohibit employees from distributing political materials and soliciting donations for political candidates or causes at work. If you wish to ban political speech in your workplace, be sure to set clear guidelines in your policies regarding dress code, office décor, and employee conduct.

If you implement a policy banning political slogans, dress, or speech in the workplace, apply the policy consistently regarding all viewpoints. Notably, the California Labor Code prohibits employers from adopting or enforcing any rule or policy that tends to control or direct the political affiliations or activities of employees.

Employers also need to keep in mind that Section 7 of the National Labor Relations Act (NLRA) protects employees when discussing the terms and conditions of employment, even on social media. This encompasses, for example, discussions regarding wages, hours, working conditions, safety, and treatment by management, and unionization efforts. As such, employers are not permitted to restrict speech on these topics, even those with political undertones.

For example, in the recent 2024 Morales decision, the National Labor Relations Board (NLRB) ruled against Home Depot in favor of an employee who wrote "BLM" (the acronym for Black Lives Matter) on his work apron. The key to the decision is that employees there had previously complained about racial discrimination in the workplace, and the NLRB viewed the employees' actions as stemming from previous workplace complaints and taking action to get management's attention. Therefore, they found the conduct qualified as "protected concerted activity."

The NLRB has clarified that employers may discipline employees for speech that is discriminatory, harassing, or threatening, such as racist or sexist comments, in accordance with your anti-harassment and code of conduct policies.

Disciplining Employees Based on Political Activities Outside of Work

California law prohibits employers from terminating or otherwise retaliating against employees for their political activities or beliefs.

However, this is different from a situation where the employee's outside political activities interfere with work. For example, if an employee misses work to attend a protest or if the employee runs for office and is unable to meet their work obligations, the employer is permitted to discipline or terminate the employee based on legitimate business reasons, unrelated to the political activity.

Encouraging Employees to Engage in Political Activities

Employers are free to encourage employees to participate in civic duties, such as voting and volunteering at the polls so long as the employer does not require employees to support any specific candidate or issue. You may also offer employees additional paid or unpaid time off for these purposes, in accordance with your policies.

Employee Time off Rights for Voting in California

Finally, let's discuss voting rights for California employees. If an employee does not have sufficient time outside of working hours to vote in a statewide election, they are entitled to take up to two hours of paid time off from work, to vote. If an employee requires more than two hours to vote, they are entitled to use additional unpaid time off. You may not require the employee to use accrued vacation or PTO for this purpose. Exempt employees who take time off to vote are entitled to their regular salary so long as they perform any work in the workweek.

Employers may require employees to use the time off only at the beginning or end of their shift, whichever allows for the most time to vote and the least time off from working. Employees who need time off to vote are obligated to provide at least two working days' notice to their employer.

Posting for Employees

Remember, at least 10 days before every statewide election, employers are required to post a "Time Off to Vote" noticein a conspicuous place at work. If you have an all-in-one California and federal poster, this notice should already be in your workplace. However, if your office is operating remotely, consider mailing this notice to your remote workers 10 days before the election.

More questions before the upcoming election? CEA members can call us at 800.399.5331, or email us at [email protected].