June 19, 2019

June 19, 2019

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June 18, 2019

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June 17, 2019

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Employers, Politics, and Free Speech

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 § 12940(a)[“It is an unlawful employment practice…[f]or an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person…”] and definitions per Government Code § 12926).

California’s laws addressing political discourse to this end are vague. California Labor Code § 1101 prohibits employers from implementing “any rule, regulation, or policy” (1) “forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office” or (2) “controlling or directing, or tending to control or direct the political activities or affiliations of employees.” California Labor Code § 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. 

Jackson Lewis P.C. © 2019

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About this Author

Associate

Shaina L. Kinsberg is an Associate in the Los Angeles, California office of Jackson Lewis P.C. Her practice includes defending employers and management against discrimination, retaliation, FMLA/CFRA, wrongful termination, and harassment claims. She also advises clients on effective strategies to minimize potential legal claims.

Prior to joining Jackson Lewis, Ms. Kinsberg also focused her practice on the defense of employers and management for a large law firm. She also has significant experience in the area of medical malpractice...

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Principal

Hazel U. Poei is a Principal in the Los Angeles, California, office of Jackson Lewis P.C. Her practice is focused on single-plaintiff, multi-plaintiff, and class action employment litigation in state and federal courts.

Ms. Poei has also handled arbitration proceedings and matters before administrative agencies such as the Equal Employment Opportunity Commission, the California Department of Fair Employment and Housing, and the California Division of Labor Standards Enforcement. Ms. Poei has also prepared briefing to the United States Supreme Court.

213-689-0404