Seyfarth Synopsis: With the most contentious election of our lifetimes fast approaching, we might expect employees to engage in political conduct and share strong, controversial opinions while off duty, especially on social media. What can employers do about employees who share messages the employer “dislikes”? California, of course, does not provide many easy answers.

What’s the “Story” With an Employer Regulating Conduct Away From Work?

In just nine months, 2020 has offered more than a year’s worth of momentous issues, including a global pandemic, raging wildfires, an unprecedented number of hurricanes, and widespread protests over racial injustice. And then there is the election season. Online forums and, in particular, social media, are fertile grounds for people opining on such subjects through posts, photos, stories, and threads, all of which can trigger “likes,” “dislikes,” emoji reactions, and user comments.

What if some employee opinion—shared with the world—offends an employer or threatens to harm its business? Can the employer legally discipline the employee for publicizing the opinion? Can employers treat other employees better because the employer “likes” their opinions? What about restricting related behavior? The answer, of course, is that it depends.

Many people—from Tomi Lahren at the Blaze to a writer-producer for Law & Order: SVU—have found themselves in hot water with their employer after making an uncouth public comment. Several people recently were fired for such unsavory off-duty conduct as making racist comments that went viral. And an employee at a well-known tech company in California was fired after posting a “manifesto” containing opinions the company concluded were sexist. The firing prompted a lawsuit against the tech giant for discriminating against political viewpoints in violation of California law. So what laws may prevent California employers from “disliking” their employees’ behavior?

The “story” begins with the notion that employment in California is at will, so an employer can discipline an employee for any reason, so long as it does not do so for an unlawful reason. What are those unlawful reasons with respect to off-duty political conduct? California regulates two areas implicated here, political activity and lawful off-duty conduct. We discuss both below.

What’s to “Like”: the Judicial Definition of “Political Activity”

California’s statute on employee political activity is very broad. Labor Code Section 1101 precludes employers from creating rules that prevent employees from engaging in politics, running for office, or controlling employee political activity or affiliation. And Section 1102 bars employers from attempting to coerce employee political activity through demotion, pay reduction, or termination.

The case law defining “political activity” is sparse. The first definition (from 1946) said the test was whether the conduct related to the orderly conduct of government and the peaceful organization, regulation, and administration of government. Later on, the California Supreme defined it as “the espousal of a candidate or a cause, and some degree of action to promote the acceptance there of by other persons.”

Under this framework, courts have found that protected political activity includes advocating for gay rights, publicly criticizing a public official, wearing symbolic arm bands, and associating with others for the advancement of beliefs. On the other hand, courts have found that activities such as jury duty and filing administrative complaints are not political activity. Conduct that falls under “political activity” will continue to develop, but it is safe to assume that the current definition will encompass quite a bit of conduct.

Did California Pull a “Vague-book” Post on “Off-Duty” Conduct?

Vague-booking is posting something intentionally vague in order to garner attention. California’s off duty conduct statute is similarly attention-grabbing: it describes lawful off-duty conduct in terms that are, well, vague. Specifically, Labor Code Section 96(k) prohibits employers from taking adverse action against employees for lawful conduct away from work. Employees may enforce this right through a lawsuit, or the Labor Commissioner may enforce it for them.

As with Sections 1101 and 1102, the case law interpreting Section 96(k) is sparse. At first glance, the statutory language “lawful conduct occurring during nonworking hours away from the employer’s premises” seems quite expansive. But case law has defined what conduct falls within the statute—activity that is already an existing right under the state and federal constitutions, such as activity protected by privacy or free speech rights.

How Can an Employer “React” to Employee Political Activity or Off-Duty Conduct?

The good news is that employers are not “blocked” and do not have their accounts completely “disabled” when it comes to limiting political activity or off-duty conduct. Any employer action must relate to a legitimate business concern, and, in the case of political activity, must not be politically motivated. Examples from the case law of legitimate limitations have involved actions against employees for violating company policies regarding insubordination, destruction of employer property, violating editorial policies, and dating subordinates. Other cases have involved more pragmatic issues, such as firing an employee, recently elected as a county supervisor, because the employee would now lack time to devote to the job.

Before “Unfollowing” An Employee, Don’t Forget The NLRA

While we focus mainly on California law, no piece on the intersection of employment and social media would be complete without mentioning the NLRA. The NLRA provides that employees are free to engage in “concerted activities” for the purpose of “mutual aid and protection.” They thus can, without employer interference, discuss with other employees complaints about their jobs, supervisors, and working conditions. Social media posts and conduct can certainly implicate concerted activity, so it is important to consider NLRA implications before acting against an employee for such conduct. But again, legitimate business interests can justify the actions. Indeed, according to a 2018 NLRB advice memorandum, determining whether discipline for a social media post violates the NLRA requires courts to balance any business justifications with the invasion of employee rights.

Workplace Solutions

Employers should tread carefully when considering taking adverse action against employees for conduct implicating political activity or lawful off-duty conduct. Indeed, employers should consider the reasons for taking action. Is it because the employer simply did not like the conduct? Or did the conduct violate some company policy grounded in a legitimate business interest? If you are considering limitations on employee political activity or off-duty conduct, feel free to contact the authors of this post or your favorite Seyfarth attorney for more information. You can also check out our recent presentation on employee political speech at work and on social media here.

Edited by Coby Turner