In a state as diverse and politically active as California, employers are bound to encounter clashing political expressions among employees this election cycle. Navigating these challenges and enforcing policies affecting the expression of employees’ political beliefs in the workplace can be a daunting task. One misstep can lead not only to low employee morale, but also significant legal ramifications if not handled properly.
California Law – Employees' Expression of Political Beliefs
California protects employees’ rights to engage in the lawful expression of political beliefs during non-working hours. That means an employer cannot terminate or discipline an employee for their off-duty political activity, including attending political rallies or expressing support for their candidate on social media. But, if an employee engages in unlawful activity, e.g. storming the Capitol, or if the employee’s political conduct interferes with their ability to perform their job duties e.g. refusing to attend work to attend a protest or rally, that activity is not necessarily protected under the law.
Relatedly, the California Labor Code also prohibits employers from coercing employees from supporting or opposing legislative measures or threatening discipline for engaging in or refraining from following a particular course of political action. But employers can encourage employees to vote a certain way by informing employees how a candidate or ballot measure may affect the company and/or its employees.
Generally, however, private employers have a right to manage the extent of political discourse during working hours by implementing neutral workplace policies concerning political speech. These policies can include, without limitation, banning the use of political slogans and other related speech in the workplace, excluding political paraphernalia, and prohibiting employees from campaigning at work.
People often misconstrue the First Amendment as protecting the open expression of political thoughts and opinions, but that is not the case. The Free Speech clause of the Constitution does not impact a private employers’ ability to regulate these conversations.
Overlapping Concerns with Legally Protected Categories
While political beliefs and communications are not necessarily protected in the private workplace, they can easily implicate other labor and employment laws related to discrimination, harassment, or retaliation in violation of federal, state, or local laws.
For example, political speech is not a protected category under California’s Fair Employment and Housing Act (FEHA), but employers are prohibited from taking adverse action against an employee on the basis of race, religious creed, national origin, ancestry, marital status, sex, gender, gender identity, gender expression, sexual orientation, reproductive health decision-making, etc.—all topics of conversation that may have political undertones.
Similarly, the National Labor Relations Act (NLRA) protects employee political speech if it is related to improving an employee’s working conditions.
Significant concerns arise when political activity intersects these protected categories and conduct because it can be extremely difficult to draw the line as to what constitutes purely political activity versus protected conduct.
Examples:
In February 2024, the NLRB held that an employee’s wearing of “BLM” on his work apron was a protected concerted activity and therefore, the employer violated the NLRA when it discharged the employee for refusing to remove the messaging. The Board determined that the employee’s wearing of the BLM paraphernalia was racially motivated in opposition to racial discrimination, rather than political activity.
Another prominent example in today’s climate is the issue of whether an employer can prohibit employees from showing support or condemnation toward the Israel-Palestine conflict given the historical, national, religious, and ethnic factors encompassed in the conflict.
Best Practices for Employers
Because the California Labor Code prohibits employers from adopting or enforcing rules that would coerce, control, or direct employees’ political affiliations or activities, it is essential for employers to establish clear policies and practices in the workplace related to handling political discourse. More importantly, employers must equally apply these policies to employees of all political beliefs. If an employer allows Trump/Vance apparel in the workplace, they must also allow Harris/Walz attire. Similarly, if such garb is prohibited, it must be prohibited as to all.
When responding to an employee’s political conduct, it is essential for employers to carefully consider the potential impact on the aforementioned protected categories and conduct, and to consult with a Labor and Employment attorney before taking action in response.
