This year’s heated election cycle and last week’s shootings have left nerves raw. I see evidence of this on Facebook every day as “Friends” express their anger, fear, and criticism in memes, status updates, and comment wars. With the parallel existence of our virtual and real lives, these same sentiments are just under the surface in conversations at work and will undoubtedly bubble to the surface, if not explode, at work.
As an employer, how do you maintain a cordial work environment, ensure that your employees feel safe and are productive, and also protect yourself from a lawsuit?
To help navigate through the rest of this year, California employers should be mindful of 3 main principles when it comes to politics in the workplace.
- Beware of forcing your politics on your employees.
Yes, at this point there is no question that corporations have the right to free speech. However, California law prohibits employers from “[c]ontrolling or directing, or tending to control or direct the political activities or affiliations of [their] employees.” (Cal. Lab. Code § 1101.) Additionally, Section 1102 of the Labor Code prohibits any employer in California from coercing or influencing employees through threat of discharge or loss of employment to follow or refrain from a particular line of political action or activity. Thus, in the expression of its right to free speech, your company may open itself up to an employee’s claim that s/he was compelled to give to a certain political candidate, campaign, or cause that the company advocates for fear that failure to do so would result in lack of opportunities within the company or even termination.
In an unpublished case, former employees of a law firm alleged that their former employer forced them to contribute to a political candidate and failed to fully reimburse them as promised. In another unpublished case, the court of appeal allowed plaintiff to proceed with his claims for wrongful termination when he was terminated after removing his employer’s “gay/lesbian pride month” poster because it offended him. The court of appeal said it was a close call. The employee could have been legitimately terminated for removing company property, but it was also possible that he was terminated because he expressed his disagreement with the poster’s message. Lawsuits are expensive so you’d rather not walk the “close call” line.
- Employees have a right to participate in political activity.
On the other hand, you also can’t terminate an employee for having or expressing political views, even if you don’t agree with them (unless the employee advocates inciting violence or the overthrow of the United States Government or interferes with the functioning of your business).
The California legislature considers an employee’s right to engage in political activity without interference by an employer a fundamental right. Section 1101 of the California Labor Code also prohibits an employer from making, adopting, or enforcing any rule, regulation, or policy that forbids or prevents employees from engaging or participating in politics or from becoming candidates for public office.
The term “political activity” connotes the espousal of a candidate or a cause, and some degree of action to promote their acceptance by other persons. These activities include such things as participation in litigation, the wearing of symbolic armbands, and the association with others for the advancement of beliefs and ideas.
- The rules of non-harassment and non-discrimination still apply.
Although employees have the right to engage in political activities or discussions, those rights are not absolute. As an employer, you still have a duty to ensure that your workplace is free from harassment and discrimination. This means that when someone’s political activity or discussion gets heated to the point that it offends another employee or creates a hostile work environment, you will need to step in and follow your company’s procedures for addressing harassment and discrimination in the workplace.
As an employer you probably feel like you’re walking a tightrope, especially at a time when the entire country feels as if it’s about to erupt. Here are some practical tips to get you through.
- Create a respectful work culture from the top and make sure that managers respect differing and opposing views.
- Encourage in-person interaction. Communications over e-mail are easily misinterpreted and don’t allow people to pick up the recipient’s cues of discomfort with a topic. People are also less likely to say offensive things in-person.
- Establish a culture of civility. This is the perfect time to remind employees of the your company’s anti-harassment and anti-discrimination policy.
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