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.

By Nick Geannacopulos and Emily Barker

With the election upon us, political expression at work likely has intensified and at times may have led to disharmony. We all understand that political speech receives the highest protection in the civil arena—but how far does that protection extend in the California workplace? What if your at-will employee goes on the radio to assert a political stance directly adverse to your company’s interests? Can you stop the company-wide email that asks for contributions to the local independent candidate? Can you require your nostalgic baby boomer to take down his “Nixon’s The One” poster in his office?

A reasonable employer might think that it can regulate, or stop entirely, potentially disruptive workplace conduct that occurs on company premises. But let’s remember once again that California is peculiar: employers here must navigate around strong protections for political activities that apply both in and outside the workplace. Specifically, California Labor Code sections 1101 and 1102 prevent private employers from controlling or attempting to restrict employees from participating in political actions or activities.

Now let’s revisit the examples we mentioned above: Continue Reading Managing the Two P’s: Profanity and Politics in the Workplace

By Nick Geannacopulos and Emily Barker

You have likely noticed that business interactions and the way people communicate professionally have declined in formality over recent years.  The “Friday Casual” day has become the casual week.  Formal letters have turned into short emails.  Even slang has devolved to emoticons and language unheard of in the workplace a decade ago.  Navigating through these trends in the working environment is not always easy.  This is especially true given California’s unique employment laws.

Two categories of communication stand out in California as traps for the unwary employer: profanity and politics.  This post covers the first of those topics—profanity at work.  For a more detailed look at issues surrounding politics in the workplace, please stay tuned for a future blog post.

Profanity in the Workplace:

Profanity is not rare in the work environment but employers do not always know how to respond.  For example,

  • Can you terminate and or discipline an employee who directs the F-word to his supervisor?

  • What if it is the supervisor who is using profanity?  Can the employer ignore it?

The answer is:  “It depends.”  Traditionally, one would expect that cussing out your boss would constitute good cause for termination.  But the context of the offensive language is key.

Any workplace is populated by a range of employees.  It’s only natural that a supervisor might wish to give benefit of the doubt to a good employee who makes a linguistic slip-up, but may terminate a less good employee whose unsavory comment is the “last straw.”  However, any time you terminate someone for use of foul language, you should consider the history and the available evidence.  Was one employee treated differently than another for the same conduct?  Discipline in one instance and not the other may put the company at risk for claims that the off-color language was a pretext for discrimination under the FEHA.  Further, an employee could be found to have a right to express himself or herself in a heated manner, depending on the context.

On the other hand, a supervisor’s use of profanity in the workplace could be found to create a hostile work environment, depending on the frequency and—you guessed it—context.  For this reason, all employee complaints about profanity must be taken seriously.

  • And, bring on the California Peculiarities!  In California, profanity should also now be considered in light of new legislative standards on “abusive conduct” under AB 2053, which will become effective January 1, 2015.  That law [see our Legislative Update post here] will require employers operating in California who provide anti-harassment training to supervisors every two years (under Gov’t Code § 12950.1) to include “prevention of abusive conduct” as a component of that training.  While the law does not create any new cause of action under the FEHA, or mandate that employers adopt an anti-bullying policy, it does define “abusive conduct” as “conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive and unrelated to an employer’s legitimate business interests.  Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance.”  It is a fair guess that profanity may fall under that definition.

  • Also, in what seems to be a trend in this area, the National Labor Relations Board has come out fairly strongly against employers in the union environment, as well:  an employee who called his boss a “f++++ mother f*****” and an “A**hole” was found entitled to reinstatement and back pay because the Board determined his words were a protected complaint about working conditions.  The Board has also found broad civility and code of conduct policies prohibiting vulgar language unenforceable and illegal on the ground they may chill protected speech.  The struggle for employers in union environments is that virtually all swearing outbursts at work can be seen as either directly or indirectly related to “terms and conditions of employment.”

Workplace Solutions:  If you’re wondering what to do with your foul-mouthed employees, consider the above government moves toward legislating civility in the workplace, and contact your Seyfarth attorney to give you advice for these unique situations.  In addition, Seyfarth Shaw at Work has put together some great training materials on the new law about “abusive conduct” training that should help employers stay in compliance.  You can contact us for more information on those trainings here.  Last but not least, keep your eye out for our California Legislative Update webinar, where members of the California Workplace Solutions group will dig deep on the new laws and how they’re affecting California employers.

Edited by Coby Turner