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California’s Primary Election is Right Around the Corner: Be Prepared…and Don’t Expect Employees to Leave their Opinions at the Door
News of this year’s presidential election surrounds us daily. That can bring out strong opinions, not necessarily checked at the door when employees enter the workplace, which can lead to tension or resentment and impact productivity. While it is natural to want to control those unpleasant possibilities, it is important that employers are aware of their duties and their employees’ rights related to the election season. Here are some suggestions for California employers to help prepare for this election year.
Refrain from directing the political activities of your employees
The courts have long held that an employer has no right to coerce or influence its employees to follow any particular course or line of political action, or political activity. Moreover, California’s Labor Code expressly provides that no employer shall make, adopt, or enforce any rule or policy forbidding or preventing employees from participating in politics or from becoming candidates for public office. Additionally, employers are prohibited from controlling or directing the political activities or affiliations of their employees. Remember, not all employees think like you do and California is one of only a few states that prohibits employers from discriminating against employees due to political activity or affiliation. So before you require your employees to “volunteer” at the campaign phone banks to support your local councilmember or donate money to a candidate or political cause, consider whether your actions could be deemed as an effort to direct the political activities of your workforce.
Encourage political talk during breaks and not during worktime
California employees are often surprised to learn that “free speech” protections don’t necessarily apply in the workplace. In fact, the First Amendment applies only to that of federal, state or local governments and not to the private workplace. However, this doesn’t mean that employers can or should adopt policies that severely limit employees from expressing their personal views about political issues. In fact, it is unlawful in California for an employer to adopt or enforce a policy that prohibits or even limits the use of any language in any workplace, unless the language restriction is justified by a business necessity, and the employer has notified its employees of the circumstances and the time when the language restriction is required to be observed, as well as the consequences for violating the language restriction. This means that unless the employer has an overriding legitimate business purpose such that the language restriction is necessary for the safe and efficient operation of the business and there is no alternative practice to the language restriction that would accomplish the business purpose equally well, the practice may violate the law.
Rather than attempt to shut down all political discussions in the workplace, remind employees they are at the job to work but are welcome to share their opinions with co-workers during break time, when co-workers also have the ability to walk away from such conversations.
Check your non-solicitation policy
Before you ban your employees from debating the benefits of a Clinton Administration versus four years of a Trump presidency, remember the National Labor Relations Act (“NLRA”) and check your non-solicitation policy. The NLRA prohibits employers from enforcing overly broad policies that restrict employees’ rights to engage in “protected concerted activity” or simply the right of employees to come together and act in order to improve their working conditions. For example, political conversations and distribution of political materials in nonworking areas and on nonworking time may be protected under the NLRA regardless of whether your employees are represented by a union. Dress code policies and practices that prohibit an employee from wearing politically related buttons regularly have also been found to violate the NLRA. Additionally, policies that prohibit the personal use of employer property such as email, but are not uniformly and consistently enforced until campaign season, may further violate the law. Therefore, if your business already has a “nonsolicitation” policy, be sure that it is carefully crafted to comply with current state and federal law.
Be prepared to offer time off for voting
Finally, California law requires employers to provide employees sufficient time off to vote. This means that if a voter does not have sufficient time outside of working hours to vote at a statewide election, the voter may, without loss of pay, take off enough working time that, when added to the voting time available outside of working hours, will enable the employee to vote. The time off must be either before the employees’ shifts begin or after their shifts end, unless otherwise agreed to by the employer and employee. The employer is only required to pay employees for up to two (2) hours of time off to vote. Employees must give their employer at least three days’ notice of their intention to take voting leave if they know or have reason to know the leave will be necessary. (See CA Election Code 14000.)
Additionally, at least ten (10) days prior to date of the election, employers are required to post a notice conspicuously so workers can see the law pertaining to their voting rights. A notice provided by the Secretary of State can be found here
—Lisa Ryan
Cook Brown LLP, lryan@cookbrown.com
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