Employers, Politics and Free Speech in California

 

By Shaina L. Kinsberg and Hazel U. Poei © Jackson Lewis May 28, 2019
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​With political campaigns well underway, the protection of free speech and concerns that regular political discourse could create potential liability are mounting.  Notably, within the last year, California's Fair Employment and Housing Commission expanded upon a number of definitions and specific employment practices prohibited under the Fair Employment and Housing Act (FEHA). Not listed among them is any specifically identified protection applicable to political speech or beliefs. (See Government Code section 12940(a) and definitions per Government Code § 12926)

California's laws addressing political discourse to this end are vague. California Labor Code section 1101 prohibits employers from implementing any rule, regulation, or policy "forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office" or "controlling or directing or tending to control or direct the political activities or affiliations of employees."

California Labor Code section 1102 provides "[n]o employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity." To this end, employers cannot enact policies limiting employees' political activities or affiliations or in essence force employees to follow the employer's political leanings.

On the contrary, political beliefs or views are not a specifically protected category under California's discrimination laws. Nothing in either of the two labor code provisions above directly addresses discrimination or retaliation on the basis of expressed political views. Nor does the First Amendment serve to provide any further guidance. With limited exceptions, the U.S. Constitution's guarantee of "freedom of speech" applies only to government action and not private employers/employees. The Civil Service Reform Act of 1978 prohibits political affiliation discrimination against federal employees only.

Based upon the narrow scope of protected categories and the vague and uncertain guidelines provided by the applicable California statutes, we would recommend California employers seek counsel in advance of crafting any such handbook policy. Shaina L. Kinsberg and Hazel U. Poei are attorneys with Jackson Lewis in Los Angeles. © 2019 Jackson Lewis. All rights reserved. Reposted with permission.

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