Following recent events in Charlottesville, Virginia involving a “Unite the Right” rally as well as other subsequent politically charged rallies, a large social media campaign has been undertaken to identify the protestors and encourage their employers to terminate their employment. Groups such as the Ku Klux Klan, other white supremacist and white nationalist groups and even extreme liberal grounds such as Antifa are all stirring up controversy. So, what do you do if one of your employees is involved in political activities that you do not agree with or that you believe reflect poorly on your business?
These decisions require employers to consider a complex mix of the rights and responsibilities with respect to their employees, the public, and to their business in general. In general, California law bans private employers from discriminating against workers due to their political views, affiliations, or activities, subject to certain exceptions. Cal. Labor Code §1101. These exceptions relate to the harm such actions may inflict on your business. For instance, if an employee participates in a political activity that creates a conflict of interest with your business model, you could consider terminating the employee’s employment. Additionally, if your employee’s political activities are interfering with their work, it may also be grounds for termination. California law also prohibits employers from adopting any “rule, regulation, or policy” that bars employees from running for public office, or participating in politics outside of work. Cal. Labor Code §1101. However, if such activities interfere with the employee’s work, you may have valid grounds for termination.
Finally, employers must also be careful not to violate the National Labor Relations Act by punishing employees who may be commenting about the terms and conditions of their employment. For example, a white employee complaining about losing out on a promotion to a non-white co-worker as part of an affirmative action program may be engaging in protected conduct, depending on the circumstances. Protections on expression are not absolute, but a certain amount of tolerance of varying viewpoints is required, whether you as an employer agree with them or not.
Employment issues relating to free speech are very complex issues for employers. The facts of any given situation vary wildly and must be analyzed on a case-by-case basis. If you have any questions regarding federal or California employment law, the attorneys at NavBat can help you to walk this delicate tightrope.