Employer Electioneering

Election day 2012 is just around the corner. A recent New York Times article reports that employers have been emboldened by the ruling in Citizens United v. Federal Election Commission, 558 U.S. 50 (2010) to express their political views to their employees. Employers in California should be careful in how they go about doing so.

Cal. Lab. Code section 1101 provides: "No employer shall make, adopt, or enforce any rule, regulation, or policy: (a) Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office. (b) Controlling or directing or tending to control or direct the political activities or affiliations of employees."

This statute has generally been invoked by employees who were punished for expressing their political views.  For example, a newspaper columnist defeated the employer's summary judgment motion by showing that he had been discharged shortly after he supported a particular mayoral candidate during a radio appearance. Ali v. L.A. Focus Publication, 112 Cal. App. 4th 1477.

The language of the provision would appear to extend to affirmative employer speech that tends to control the political activities or affiliations of its employees. But, when the constitutionality of the statute was challenged after its enactment, the California Supreme Court said that the statute did not purport to limit the publication of political beliefs. "Defendant also contends that section 1101 is unconstitutional because its enforcement assertedly deprives an employer of the right of free speech and prevents him from publishing his political beliefs or views among his employees. There is nothing in the section which, expressly or by implication, has any such effect." Lockheed Aircraft Corp. v. Superior Court of Los Angeles County, 28 Cal. 2d 481 (1946).

We have not been able to find any reported decisions since that discuss the limits on employer electioneering efforts in the workplace. Before urging employees how to vote, consider the following hypothetical:

Mary Smith's employer distributes a memo in the office urging all employees to vote for Richard Roe for president. Mary has a bumper sticker on her car supporting Jane Doe, Roe's rival for the presidency. Roe loses the election. A week later May's employer fires her. If she brings a lawsuit alleging a violation of section 1101, will the jury award her substantial damages? Would the result be different if the employer had not distributed the memo urging a vote for Roe?

May Employers Base Employment Decisions on Off-Duty Conduct?

Three teachers have recently been in the news for their extracurricular activities. A Philadelphia high school teacher was suspended for complaining on her blog that her students acted like "rude, disengaged, lazy whiners." A Florida high school football coach was fired for sending racy pictures to his non-student girlfriend. Another Florida teacher was fired for posting to Facebook that gay marriage was a sin and that same-sex unions were a cesspool. See Teachers Under The Morality Microscope by Jonathan Turley in the Los Angeles Times. These and other cases raise questions about the legal limits on an employer's ability to make employment decisions based on off-duty conduct.

Private Employers

Under the at will presumption of Labor Code section 2922, a private employer may discharge an employee for any reason, so long as it is not an illegal reason. Thus, in the absence of a statutory bar, an employer may base discharge on off duty conduct. For example, even though tobacco use is lawful, an employer could require its employees to refrain from tobacco use. (For an example of an unsuccessful effort by a smoker to challenge his termination, see Rodrigues v. EG Systems, Inc., 639 F. Supp. 2d 131 (D. Mass. 2009).) In reaction to that possibility, some states (not including California) have enacted protections for tobacco-using employees. (See this compilation by the National Conference of State Legislatures.)

Although the language of California Labor Code section 96(k) appears to protect employees from adverse action based on "lawful conduct occurring during nonworking hours away from the employer's premises," it has been interpreted to apply only to conduct that already has constitutional protection. See Attorney General Opinion No. 00-303 (10/10/2000); Barbee v. Household Automotive Fin. Corp., 113 Cal. App. 4th 525, 6 Cal.Rptr.3d 406 (2003); Grinzi v. San Diego Hospice Corp., 120 Cal. App. 4th 72, 14 Cal. Rptr. 3d 893 (2004).

California Labor Code section 432.7 bars employers from taking adverse action based on any arrest or detention that does not result in a conviction, but allows them to inquire about an arrest for which the employee or applicant is out on bail or on his or her own recognizance pending trial. Thus, the employer may base adverse action on results of its own investigation of the facts surrounding the incident for which the employee was arrested. Cranston v. City of Richmond, 40 Cal.3d 755, 710 P.2d 845, 221 Cal. Rptr. 779 (1985).

California Labor Code sections 1101 and 1102 prohibit employers from acting against their employees based on their political beliefs and activities. Under those provisions, a newspaper editor who was fired after public stating his support for a mayoral candidate had a cause of action for wrongful termination. Ali v. L.A. Focus Publication, 112 Cal.App.4th 1477, 5 Cal.Rptr.3d 791 (2003).

As we explained in a previous blog entry, posting comments online about one’s employment may be protected under the National Labor Relations Act. Basing action on information from an employee's off duty online comments may also violate privacy and wiretapping laws. See, for example, Pietrylo v. Hillstone Restaurant Group, Case No. 06-CV-5754 (D.N.J. Sep. 25, 2009), where a jury awarded $3,400 to two employees fired after management got log in to their private MySpace chat group.

An employee may claim that the employer punishes off duty conduct differently based on a protected characteristic. For example, after Delta fired a female employee who posted suggestive photos of herself in a Delta uniform on her "Queen of the Sky" blog, she claimed that the airline did not treat male employees similarly. Simonetti v. Delta Airlines, Inc., Case No. 05-cv-2321 (N.D. Ga. 2005). Her case was dismissed without prejudice during Delta's bankruptcy proceedings, and never decided on the merits.

Public Employers



As a general rule, public employees are not at will, but may only be discharged for good cause. Their statutory right to continued employment establishes a property right that is protected by due process. Skelly v. State Personnel Bd., 15 Cal.3d 194, 539 P.2d 774 (1975). These principles impose additional restrictions on public employers who seek to discharge employees for off duty conduct.

Generally, a public employer must show that the off duty conduct is rationally related to the employee's particular job, and would result in impairment or disruption of public service. For example, the U.S. Supreme Court upheld the discharge of a police officer who sold video of himself stripping and masturbating online, because his off duty conduct was "detrimental to the mission and functions of the employer."
City of San Diego v. Roe, 543 U.S. 77 (2004). By contrast, a male correctional officer could not be terminated for wearing female clothing away from work, because there was no evidence that his performance of his job was impaired. Yancey v. State Personnel Bd., 167 Cal.App.3d 478, 213 Cal. Rptr. 634 (1985).

Although criminal convictions may constitute good cause for termination of a public employee, the employer may not rely on the conviction if it resulted from a nolo contendere plea. County of Los Angeles v. Civil Service Com., 39 Cal.App.4th 620, 46 Cal.Rptr.2d 256 (1995). Instead, the employer must introduce evidence that independently establishes the wrongdoing.

Social Media In The Workplace

Social media (Facebook, Twitter, LinkIn, the new Google+ and many other similar services) can provide welcome exposure for businesses and their employees (, but also pose risks. While the owner of a number of vacation cottages in Nova Scotia was able to book all her cottages with the help of Facebook, Domino's Pizza faced a public relations disaster in 2009 when two of its employees posted a YouTube video of employees violating health standards. A New Jersey appellate court ruled that an employer could be held liable for the damage caused by an employee who uploaded pornographic pictures of his wife's 10-year old daughter from an earlier marriage. Doe v. XYZ Corp., 887 A.2d 1156 (2005). As discussed in an earlier post, the National Labor Relations Board has ruled it an unfair labor practice for employers to discipline employees for communicating their unhappiness with their working conditions on Facebook.

What should an employer do to navigate successfully between the Scylla of a large award to someone damaged by employee use of social media and the Charybdis of an equally large award for invading employee privacy? Here are some suggestions:

1. Develop a written social media policy. This is a must. Take the time to think through what uses of social media at your workplace are appropriate, and have all employees acknowledge the policy in writing. For a list of over 100 examples, visit this page, at socialmediatoday.com
2. Consider banning all access to social media at your workplace. In addition to the liability risks mentioned above, social media are a significant drain on productivity. A 2010 survey found that employees spend more than an hour a day on social media, primarily for personal reasons.
3. If you permit use of social media from the workplace, make sure that the social media policy explains that inappropriate content may not be posted, and that use of the company's equipment to access social media may be subject to monitoring by the company.
4. Do not use searches of social media sites to make hiring decisions. Such searches may well turn up personal characteristics (such as religion, national origin or sexual orientation) that should not be part of the hiring process. The information may also be unreliable. If you need to look into a potential employee's background, use an established provider to do so.
5. Be careful when monitoring social media postings by employees. Using surreptitious means to access a private site can subject the employer to invasion of privacy of liability as the owner of the Houston's Restaurant chain found out in federal court in New Jersey. California prohibits making adverse employment decisions based on political activities (Labor Code sections 1101 and 1102) or lawful conduct while off-duty (Labor Code sections 96 and 98.6).

Election Day Reminders

Election Day is Tuesday, November 4, 2008, and with it come concerns for employers. Here are some things to keep in mind:

1. Employees are eligible for paid time off for the purpose of voting if they do not have sufficient time outside of working hours to vote. Since voting hours are from 7:00 am to 8:00 pm, most employees will be able to vote outside of working hours. Employees can be given as much time as they need in order to vote, but only a maximum of two hours is paid. Employers may require employees to give advance notice that they will need additional time off for voting. Employers may require time off to be taken only at the beginning or end of the employee's shift. Employers must post a notice of the time off entitlement 10 days before November 4. Sample notices are available in English and Spanish from the website of the California Secretary of State.

2. Labor Code sections 1101 and 1102 prohibit employers from trying to control their employees' political activities. They may not prevent employees from engaging or participating in politics, or control or direct the political activities or affiliations of their employees, or influence or attempt to coerce or influence their employees to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity by threat of discharge. While employers may prohibit employees from engaging in political activities while in the course of their employment, they may not attempt to influence activities outside the workplace.

3. In February 2006, a San Diego County employee filed suit under the Labor Code provisions. She alleged that her manager fired her after seeing a bumper sticker for "1360 Air America Progressive Talk Radio" on the woman's car. There have been no reports of the disposition of the case. An article on the lawsuit appeared in the North County Times on March 8, 2006.

4. In October 2003, the Second District Court of Appeal reinstated a newspaper columnist's claim under the Labor Code provisions. He alleged that he had been fired in retaliation for supporting Antonio Villaraigosa on a local radio show during the 2001 mayoral election, and criticizing Congresswoman Maxine Waters for supporting James Hahn. Although the newspaper could control what the columnist published in its pages, it could not subject him to adverse action for views expressed in other forums. Ali v. L.A. Focus Publication, Case No. B159820 (Cal. Ct. App. Oct. 31, 2003).