Seyfarth Synopsis: Though the election is over, politics continue to boil watercoolers in workplaces across California. So while employers presumably know that they must provide employees with time off to vote—we hope!—they also must recognize that their employees’ political rights are not confined to the polling place.

Employees Have a Broad Right To Engage in Political Activities

A peculiar California statute (section 1101 of the Labor Code) prohibits employers from making, adopting, or enforcing any rule, regulation, or policy that prevents employees from engaging in political activities or that tends to control their political activities or affiliations. The protected political activities are not limited to running for office or stumping for a candidate. Courts have interpreted “political activity” broadly to include non-partisan activities, including wearing symbolic armbands and associating with others to advance beliefs and ideals. Employers thus should avoid taking adverse actions against employees for participating in protected political activities.

Of course, political activities (whatever they may be) do not occur in a vacuum. Employees who engage in otherwise protected political activities may still be subject to discipline if their conduct violates legitimate employer policies. In such instances where an employee’s conduct provides a legitimate, non-political justification for disciplining an employee, employers may act, but should ensure that their personnel policies are applied evenly across the political spectrum.

One prominent California technology company was recently hit with a class action lawsuit accusing it of discriminating against employees with “perceived conservative political views, and activities,” after the company fired one of the class-action plaintiffs for “perpetuating gender stereotypes” in a written communication he had circulated internally within the company.

Businesses Cannot Coerce Their Employees Into Adopting Company Politics

In this era of corporate activism, it is seemingly more common than ever for businesses to stake out public positions on hot button subjects. They cannot, however, force employees to toe the company (political) line. California employers must not attempt to influence their employees’ political activities by threatening termination for voting the wrong way. Employers that choose to take a political stance must therefore provide their employees with space to differ.

What Can Happen to Businesses that Violate the Law?

The consequences for failing to follow these requirements can be severe.  Employers may be liable for lost wages, damages for emotional distress, punitive damages, and a civil penalty of up to $10,000 for violations.

If you have any questions, contact the author or your favorite Seyfarth attorney.

Seyfarth SynopsisUnder California law, employers have a part to play in protecting employee voting rights and other political activity.  What follows is a short reminder of employer duties and obligations.

With the June 7, 2016, primary right around the corner, California employers need to be prepared for election season.  For your reference, here is a quick summary of some of the major issues California employers may face between now and Election Day.

Voting

Regardless of whether their employees are feeling the Bern or stumping for Trump, California employers must ensure that employees have an opportunity to visit the polls, which are open from 7:00 a.m. until 8:00 p.m.  California Elections Code Section 14000 requires employers to provide employees who do not have sufficient time to vote outside of their regular working hours with up to two hours of paid time off to vote at the beginning or end of their regular shift, depending upon whichever will permit the most time for voting and the least amount of time off the job.  Employers and employees also are permitted to work out a mutually agreeable schedule for Election Day that better suits their needs.

Employees cannot simply skip work to punch those ballots, however.  Instead, employees who believe by the time of the third working day before Election Day that they will need to time off to exercise their civic duty must provide their employer with notice no later than two working days before Election Day.  To ensure that employees are apprised of this right, California Elections Code Section 14001 very patriotically obligates employers to post a notice setting forth the provisions of Section 14000 in a conspicuous place ten days before Election Day.  The notice can be found here.

Political Activity

Beyond pulling the lever in the voting booth, California employers must also allow employees to exercise their fundamental right to engage in political activity without interference.  That means employers cannot restrict their employee’s political activities or affiliations, nor can they force employees to participate in any particular political activity. Cal. Lab. Code §§ 1101 and 1102.  Employers need to keep in mind that political activity means more than just casting a vote.  The meaning of “protected activity” is expansive and encompasses participation in organizations or movements advocating for political or social causes such as civil and equal rights. Gay Law Students Assn. v. Pac. Tel. & Tel. Co., 24 Cal. 3d 458, 488 (1979).  Employers who interfere with an employee’s political activities should be aware that an employee may pursue a cause of action to recover damages sustained as a result of the employer’s interference.  Lockheed Aircraft Corp. v. Superior Court, 28 Cal.2d 481 (1946).

Solicitation of Funds

Private employers also cannot force their employees to donate funds to campaigns.  They may, however, solicit campaign donations from managers, officers, or executives with policymaking authority if they have political action committees. 2 U.S.C § 441(b)(3).  However, even if they want to “make America great again,” employers cannot coerce employees to donate their personal funds for political purposes.  What this means is, under both Federal and California law, employers cannot use threats of discharge, demotion, or any other financial reprisal to pressure employees to donate. 11 CFR § 114.2 (f)(2)(iv); see also Cal. Lab. Code § 1102; Fort v. Civil Service Comm’n of the County of Alameda, 61 Cal. 2d 331, 338 (1964).  Accordingly, private employers soliciting funds must have a political action committee, seek funds only from policymakers, and ensure that contributions are entirely voluntary lest they Cruz (sic) into a potential lawsuit.

Questions

If you have any questions regarding any of your obligations or your employees’ rights to flex their political muscles, please feel free to contact your favorite Seyfarth attorney.

Edited by Chelsea Mesa.