Written by Tesesa Johnson.
As the election draws to a close, people are excited to show support for their party and/or candidate of choice, both in person and over social media. But can a person be fired because of how they vote, or because of which candidate they support?
Kramer Trial Lawyers, A.P.C. shares the answer: possibly.
Employer retaliation over political affiliation is nothing new. Recently a police officer in New York City was suspended and put under investigation for saying “Trump 2020” over the loudspeaker while on duty. Another policeman in Miami was under investigation for wearing a “Trump 2020” mask on duty at a polling center. These incidents raise questions about the role of politics in the workplace, and what protections might be afforded to employees who wish to share support for a certain candidate while on the job.
The Civil Rights Act Title VII and other federal laws have made it illegal for employers to discriminate against employees on the basis of race, color, national origin, disability, gender, or age. Unfortunately, these laws do not operate to also prevent employers from terminating an employee based on political affiliation or activity (such as engaging in a protest or campaigning for a specific candidate).
If you are employed by the federal government, however, this does not necessarily mean that your employer can fire you for expressing your political beliefs. The First Amendment of the United States Constitution does guarantee the right to free speech, and therefore if you are employed by a public entity, such as the federal or state government, you may have a case if you are terminated because of your political beliefs, or expression of support for a particular candidate. However, the First Amendment does not provide blanket protection as to all political speech. One common misconception is that the First Amendment protects the right to free speech in every scenario, and this is not the case. The First Amendment does not apply in the context of a private (as opposed to governmental) employer. In other words, an employee who goes into work and shares his or her political beliefs with coworkers cannot rely on the First Amendment for protection, in the event the employer decides to take action.
In California, we also have laws in place that protect the employees of private employers from adverse employment actions due to the employee’s political affiliation or activities. The California Labor Code has expressly set forth that a private employer cannot (1) set policies that prevent employees from engaging in political activity, run for office, or that otherwise, control or direct an employee’s political activity; (2) threaten to engage in political activity to retaliate or control an employee’s political activities; or (3) retaliate against an employee for his or her political beliefs or activities. Cal. Labor Code sections 1101 and 1102.
In practice, this means that the employer cannot take action against an employee for expressing political beliefs or engaging in political activity outside of work, even if contrary to the beliefs held by the employer. An employer also cannot threaten to take adverse action against an employee for not agreeing with the employer’s own political beliefs. A good example of this comes from the recently filed case against Uber by rideshare drivers, who claim that Uber has been attempting to control their political activities and affiliation by pressuring drivers to support Proposition 22- a law that if passed that would have huge ramifications for Uber and other similar companies in California.
While expansive in protecting employees’ rights, the California Labor Code is not all-encompassing, in that an employer could take action against an employee whose sharing of political beliefs at the workplace affects the employee’s or any coworker’s job performance. In addition, if the employer can show a non-political or discriminatory reason for the adverse action, the employee might not be able to maintain a lawsuit on the basis of Labor Code sections 1101 and 1102.