Episode 163: Understanding California Political Speech and Election Laws at Work

Welcome to the Workplace, a podcast by Cal Chamber. I'm Matthew Roberts, the Labor Law Helpline Manager and Employment Law Council with the California Chamber of Commerce. Hello listeners. If your mailbox is anything like mine, it has been stuffed to the brim with political ads and suggestions for whom or what to cast your vote for over the last six weeks or so. That means it is election season this year. Election day is on Tuesday, November 8th. And of course, as we all know, the last several years worth of elections have felt more contentious than normal with a lot of us or them political rhetoric that serves to escalate these tensions to add to the pot. Many people are a lot more emboldened to share publicly how they feel. And with the post pandemic return to work sites, the workplace is just another potential arena to see politics spill over and potentially create some issues in our workplace. So to discuss all things politics and elections and how employers can navigate another election season, we welcome back Cal Chambers Vice President for Employment Law, Bianca Saad. Thank you for being here, Bianca.

Thanks for having me, Matt. Always a pleasure.

All right, so I thought we would get started with something that might surprise employers in that employers can actually engage in their own political speech with their employees. Of course, being in California, there are some rules that employers need to follow. So Bianca, let's get started. How can an employ employer engage in political speech lawfully with their employees?

Great question, Matt. So there are some things employers can do, such as communicate with their employees, stockholders and their families about the company's support of or opposition to state legislation, regulations or ballot measures. Employers can also encourage employees to support or oppose state legislation, regulations or ballot measures. So for example, Cal Chamber is urging a no vote on Prop 30. That position would be something that could be shared with employees. And those employees can be encouraged, of course, to oppose that valid measure. Aligning with Cal Chamber. Now, the key here though, is that it's done in an appropriate way, which we'll get to in a moment. Similarly, employers can also inform their employees, stockholders and their families about the effect that state legislation, regulations or ballot measures might have on the company and its employees and stockholders. So the question is, how can an employer communicate these political messages in a way that is going to be permissible? So they can communicate this information through things like internal mail systems. Now, it's important that this is separate from payroll distribution. It can go through email systems, regular mail, bulletin boards, phone, bank messages, or even an employee. This information can be shared. Now note though, that when we're talking about the Things that can be shared. We're not actually saying that. We're telling employees that this is how they should vote. Right. We're providing the employees with that particular information.

Yeah, I find that so interesting how much information an employer can actually share about its political viewpoint. And of course, as you use the example of Cal Chambers, no position on Prop 30. Now what is something that an employer cannot do? For example, communicating that message to their employees.

Yeah. So employers can't do things like we can't control or direct the political activities of their employees. And that includes by means such as a threat of discharge or loss of employment. We can't do anything that is going to be perceived as coercing the employees to support or oppose a ballot measure. Again, this is where we make that distinction between, yes, we can share the position, we can talk about the fact that a ballot measure may impact an organization in a particular way, but we're not actually telling the employees how to vote, nor can we reward or punish employees for their political activities or beliefs or again, threaten to do so. And then this last one's important. We have to make sure that we don't put any political messages in or on employees payroll envelopes. So in other words, no paycheck stuffers. Right. Where we're giving them their check, we're saying, oh, by the way, this is our position on this particular ballot measure that could be seen as incentivizing or threatening depending on how that employee is going to view it. So definitely need to make sure that we are communicating it in a very clean manner.

Okay, great. So we know that an employer cannot direct and control the employee's political speech.

But.

But what about an employee's own practice speech?

Right.

As we mentioned at the outset, individuals are more emboldened now to kind of be more political to openly express who or what they support. So what protections do employees have about their own proactive political speech?

Yeah, so the California Labor Code does protect an employee's rights to lawful off duty activity, and that includes their lawful political activity outside of work. And the National Labor Relations act also protects text employee political speech if it's related to improving working conditions. So things like supporting the candidate who wants to raise the minimum wage, this would be protected in the workplace.

Okay, so what about speech actually in the workplace? Right. Someone coming into the work site and having a political discussion with a coworker that, you know, may get heated, may escalate into a loud confrontation, a physical confrontation even. How much protection does an employee have about their political speech while they're at work.

That's a great question. So when we look at something like the Fair Employment and Housing act, it isn't explicitly carved out as far as something as political speech as its own specifically protected category. So employers can have these neutral political speech policies that would allow an employee to exercise their rights under both the Labor Code and the nlra, but also done in a way that is going to hopefully avoid tensions and escalations in the workplace. And then also if the speech does rise to a level that might implicate the Fair Employment and Housing Act. So if it rises to something that could be construed as hate speech, then that's where an employer is going to have the ability to discipline and take control a little bit more control over the situation. With that, all of these topics are very tricky. It does tend to get a little bit fuzzy depending on, again, you know, the situation and what might be construed as something like, you know, hate speech or, you know, offensive or creating a hostile environment. So these are always things that if an employer is facing a situation where they're unsure to consult with legal counsel.

Yeah, and I think that's great. Bianca, I'm going to throw a scenario at you here that we hear very often in our seminars and on the helpline as well with things such as social media.

Right.

So employees will oftentimes be connected with each other on social media and someone will post a video of themselves at some kind of political rally. But in that political rally, they will say things or they will hold signage or some other kind of indication that they're disparaging a particular race or sex or sexual orientation. The question always comes back to us, right. Aren't they exercising their free speech or what's going on here? And so I think it really served a highlight because this is so common for our employers. What can the employer do with that situation?

Yeah, that is a common scenario and the employer can address it. And here's why. If they're, yes, they're on their free time, they're doing engage in activity outside of the workplace. But if a coworker is friends with that person or it comes to their attention that they are now seeing that maybe this individual is essentially targeting, let's say, a group of which this other employee is a member of. Right. And now they know my co worker hates people who look like me or who think like me, that does come into the workplace and that can absolutely create a hostile work environment because now that the other employees are impacted by. By that speech. So it isn't such a bright line. And again, of course, you know, you would want to consult with legal counsel and how to handle these things because there is no answer. But it still can impact the workplace, even if it's something that's happening outside. And I think that's important for people to remember.

Yeah, I think that was a wonderful explanation because that really trips up people between free speech, political speech, and things that come into the workplace. All right, Bianca, so we've talked about what employers can do, what employees can do as we're navigating the political arena as the election approaches. But the election is now fast approaching. So what kind of leave entitlements do employees have, if any, to actually go vote on Election Day?

Yeah. So California actually does have voting leave that would allow an employee. Now, here's the catch. The employee has to be unable to vote because of the way that their shift is. And it's not an automatic entitlement. That employee is going to. And they're entitled up to two hours of paid leave to vote. So it is paid leave. However, they do need to give their employer advance notice of the need for the leave. And one of the things that we're seeing with the increased popularity, of course, of voting by mail, as well as the Voters Choice act, which allows an additional number of days for an employee to vote for those participating counties. It really isn't something that we see come up a ton, but it is important for employers to be aware of because there is a posting requirement. So employers are required to have this poster notification at least 10 days prior to that statewide election, and that needs to be up in place. And again, allowing that employee the time off if they're unable to vote before or after they're shipped. Now, there are some things around that the employer does have some ability to decide whether or not that time which side of the shift is it going to be on the first part of their shift or the second or the second half in terms of what makes the most sense for the employer? But yeah, it is important that again, even though with, you know, voting by mail being accessible to everybody, we don't forget that this leave. Right. Is out there.

All right. Well, Bianca, thank you for joining me today to set the record straight on political speech in elections.

Thank you so much for having me, Matt. Always a pleasure.

And thank you, listeners, for joining this discussion on the workplace. Please comment, share and subscribe to Cal Chambers podcast by visiting calchamber.com.