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?

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).