I first addressed the legality of employer regulation of employee political activity in my first Law at Work column eight years ago. The political environment is as polarized now as it was then.
Gallup: Many people talk politics at work
In August, Gallup released the results of a poll probing the prevalence and effect of talking politics at work under the headline “Talking Politics at Work: A Double-Edged Sword.” Gallup found nearly half of U.S. workers it polled in February had discussed political issues at work in the past month.
Gallup found such conversations were more common in male-dominated industries than in female-dominated industries; that men were more likely to have had political discussions in the workplace (54 percent) than women (35 percent); and that such conversations were more common among those working fully on-site or in a hybrid arrangement than those working fully remotely.
More younger workers (29 percent of those 18-44) reported feeling uncomfortable because of workplace political discussions than older workers (19 percent of those 45 or older), presumably because of power imbalances. Gallup also found that while 11 percent of workers reported growing closer to a co-worker with whom they have shared their political views, 3 percent reported that they were treated unfairly due to their political views.
A recent Washington Post report on the poll said: “The question of how to manage political interactions and expression in the workplace has become increasingly urgent for managers over the past years, as workers across the country have taken part in protests, walkouts and boycotts, both over corporate policies and political issues. Now, as the presidential campaign heats up, it’s even more front-of-mind.”
California employers may not bar or coerce employee political activity
While constitutional free speech rights do not apply in the private workplace, California Labor Code section 1101 prohibits employers from adopting any rule or policy that blocks their employees from running for office or otherwise participating in politics. The same statute prohibits employers from adopting any rule or policy that controls or may tend to control “the political activities or affiliations of employees.”
Labor Code section 1102 bars an employer from threatening to terminate an employee for following or refusing to follow a particular course of political action or political activity.
These laws were enacted nearly 90 years ago. In recent years, these laws have been applied with varying outcomes to such matters as employee social media posts and employee participation in political protests and rallies.
Dealing with political talk at work
Barring all “political” talk in the workplace is impractical and probably illegal. Besides implicating the above California statutes, such a gag order may violate the federal National Labor Relations Act, which protects the right of workers in union and non-union workplaces alike to communicate with each other about such arguably political matters, broadly defined, as improving their wages, hours and working conditions.
Gallup suggests employers manage potential fallout from political discussions in the workplace by establishing “ground rules for respectful behavior as well as systems to address disrespect or discrimination. If guidelines are in place for managing these discussions at work, ensure they are well-communicated and understood by every employee.”
Eight years ago, I went a bit further. A prudent employer will remind its workforce, as the need arises, that “dialogue on any topic in the office must be civil. And that work time is to be spent on work.” That remains sound guidance.
Eaton is a partner with the San Diego law firm of Seltzer Caplan McMahon Vitek where his practice focuses on defending and advising employers. He also is an instructor at the San Diego State University Fowler College of Business where he teaches classes in business ethics and employment law. He may be reached at [email protected].
