Every election has its share of controversy and hot-button issues; the 2016 election, however, is a spectacle the likes of which few of us have ever seen.  It is inevitable that employees will talk about the election in the workplace, and, especially in this volatile political climate, these discussions can result in heated arguments.  Because political dialogue – especially this year – can touch on issues of race, national origin, religion, sexual orientation, disability, and other protected classifications, employers sometimes struggle with whether political speech should be permitted in the workplace.  The following tips can help employers avoid liability and maintain collegiality in the workplace without infringing on their employees’ ability to vote and engage in political expression.

Time Off to Vote

Under California Elections Code section 14000, all employees have the right to take time off to vote if they do not have sufficient time outside of working hours to vote in a statewide election.  If the employee believes that time off will be needed to vote on Election Day, he or she must give the employer at least two days’ notice.  Employees can take off as much time as they need to vote; however, employers are only obligated to provide employees with two hours of paid leave to vote.  Any additional leave time needed by the employee can be unpaid unless a collective bargaining agreement or personnel rule provides otherwise.  Further, time off for voting shall be only at the beginning or end of the regular working shift, whichever allows the most free time for voting and the least time off from the regular working shift, unless other arrangements are mutually agreed to between the employee and employer.

Campaign Bumper Stickers, Posters, and Other Paraphernalia

Employees who wish to decorate their own personal workspaces with campaign stickers, posters, or other decorations present special challenges.  For example, prohibiting employees from displaying campaign posters endorsing a particular presidential candidate in their own workspace may violate free speech rights.  Unless the agency has a policy prohibiting employees from displaying all forms of non-business related materials or a non-solicitation policy, employers should not try to suppress political displays in an employee’s personal workspace unless it creates an undue hardship on business operations.

However, paraphernalia that is insulting or derogatory toward protected classifications such as race, national origin, or gender is a different matter. If an agency becomes aware of such material displayed in the workplace, it should investigate the matter pursuant to its anti-harassment, discrimination and retaliation policy.

Political Activity

The Government Code prohibits public employers from restricting the political activities of any officer or employee.  Further, Labor Code section 1101 prohibits employers from making or enforcing any policy that prevents employees from participating in politics, becoming a candidate for public office, and controlling or directing the employees’ political activities or affiliations.  Additionally, under Labor Code section 1102, employers may not coerce employees under threat of termination to follow or refrain from engaging in political action or activity.

However, notwithstanding these restrictions, public agencies may adopt rules and regulations prohibiting officers and employees from engaging in political activity during work hours and on agency premises.  This means agencies can implement a policy or enforce existing rules that essentially require employees to perform work during the hours they are paid to work, and not use that time for politics.

Peace officers and firefighters are prohibited by law from wearing their uniforms while participating in political activities of any kind.  Therefore, for example, a peace officer’s wearing his or her uniform but also wearing a hat promoting a candidate would be prohibited.  Agencies can also prohibit peace officers and firefighters from engaging in political activity while on duty.  Finally, public employers may prohibit other types of officers or employees from participating in political activities of any kind while in uniform.

Conclusion

This post is only meant to provide an overview of issues employers face during an election season.  For example, this post does not cover sections of the Education Code regarding political activity by employees.  Because there are many aspects to political expression in the workplace, employers are encouraged to contact counsel with questions.