Political Activity: Protected, Even if Unpopular

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Political Activity: Protected, Even if Unpopular

Several cases have made the news lately about high level employees causing their companies a fair amount of backlash in the media and on social sites due to unpopular political views.  Never before has there been such wide-spread dissemination of high profile employee’s political opinions, and that circumstance leads to potential conflicts between an employer’s duty to abstain from making employment decisions based on an employee’s political activity, and their desire to please their customers and clients.

Most recently, Mozilla, the company responsible for the FireFox search engine, ran afoul of public opinion when they hired Brendan Eich to act as CEO.  Eich, as was reported in the media, had been a contributor to the Proposition 8 campaign, which sought to deny the right to marry to same-sex couples in California.  Though the legislation was later struck down by the courts, public opinion wasn’t soon to forget.  Activists, employees of the company and users of the search engine mounted a protest.  It wasn’t long before Eich announced his resignation.

A similar situation occurred when Dropbox, the popular cloud storage company appointed Dr. Condoleeza Rice to a position as a Board Member of the company. The story became popular in the media and clients and customers issued an outcry, asking for the company to reconsider her appointment, due to her involvement and support of the Bush Administration’s warrantless wiretapping program, among other things.

The movement by employers to scan an prospective employee’s profiles an presence on FaceBook, Twitter and other social media sites gives employers the opportunity to look into an employee’s political background, but also tempts them to use such information in denying employment or promotional opportunities based on unlawful grounds.

The increased use of social media, such as Twitter and Facebook, to influence employers’ personnel decisions could lead to similar incidents in the future that do not grab headlines. Employers planning to take action against employees for engaging in political activity outside of work once again may find themselves between the proverbial rock and hard place. For California law protects employees’ right to engage in political activity outside of work, even political activity that offends the employer or its constituents.

California Labor Code Protections

The California legislature has made it clear that an employer is prohibited from acting against an employee in retaliation for that employee’s outside political activity.  Labor Code sections 1101 and 1102 prevent private sector employers from controlling an employee’s political activities outside of work. Section 1101 prohibits employers from making, adopting, or enforcing any rule, regulation, or policy that forbids or restricts employees from participating in politics or becoming candidates for public office. Under Section 1102, employers cannot coerce or influence an employee’s political activity by threatening discharge or loss of employment. The Legislature enacted these statutes to protect an employee’s fundamental right to engage in political activity outside of work, without interference by private employers.

Court Protections

California courts have given great deference to employee’s rights relating to political activity, especially employees speaking out in favor of gay rights, even going so far as to extend political protections to employees in the absence of legislation otherwise protecting them from discrimination in other ways.   In Gay Law Students Ass’n v. Pac. Telephone. ., the California Supreme Court recognized the struggle of the gay community to obtain equal rights, particularly with respect to employment. At the time, the law did not prohibit employment discrimination based on sexual orientation. The Court held that an employer violates sections 1101 and 1102 if it denies employment to applicants who identify as homosexual, defend homosexuality, or affiliate with gay organizations.

But California courts are protective of political speech on both sides of that issue.  The ruling in Nava v. Safeway, Inc., an unpublished decision of the California Court of Appeal, was a case more in line with the fact pattern of the Eich situation mentioned above. There, the court found that an employee had a viable wrongful termination claim because Safeway allegedly fired him for opposing gay marriage. Safeway claimed to have discharged Nava for taking down a sign he considered to be pro-gay. Nava claimed he was fired for his political beliefs.

It is pretty clear that Eich had the right to contribute to Proposition 8 as a protected political activity. Mozilla contends Eich voluntarily stepped down; if true, of course, there is no legal issue. But the company could not force his resignation or fire him simply because he supported the initiative.

Ms. Rice’s support of the NSA program may also amount to political activities protected by sections 1101 and 1102. However, Ms. Rice’s situation differs from Eich’s because she is a director on the Board of Directors, rather than an employee. It is unclear whether sections 1101 and 1102 protect board members as “employees.” An unrelated provision, Labor Code section 3351, provides that company board members are considered “employees” while rendering service to the company for pay, at least for purposes of workers’ compensation coverage. If Rice is deemed an “employee,” her prior political activities outside of the boardroom are protected from adverse consequence.

Government Employees

The California Code sections listed above, sections 1101 and 1102 apply to employees of private companies. Public sector employees also have the right to engage in political activates outside of the workplace. Governments Code sections 3201 et seq. protect government employees from retaliation for engaging in political activities. Protection for public sector employees’ speech also falls under the First Amendment of the United States Constitution, and the California Constitution. First Amendment protection applies if: (1) the speech is a matter of public concern; (2) the employee speaks as a private citizen and not as a part of his or her official duties; and (3) the employee’s speech interest outweighs the government’s interest in efficiency and effectiveness.

However, the First Amendment does not permit public sector employees to make statements that would violate civil rights laws, such as California’s Fair Employment and Housing Act or the federal Civil Rights Act of 1964. Thus, it does not protect employees who make discriminatory, harassing, or retaliatory statements.

If you feel that you have suffered negative consequences at work due to some form of political activity that you’ve been engaged in, call Stephen Danz & Associates today at (877) 789-9707 or use the Contact Form on our website to schedule a free consultation today.  Stephen has over 30 years of experience defending California workers from the unlawful acts of their employers.  He will bring that experience and expertise to your case, meeting with you in a location that is convenient to your work, school or home.  He regularly travels the state from San Diego to Northern California, meeting with clients and attending court hearings and settlements.  He also has offices and associates in many cities across the state and in Nevada.