Mcle Self-study: Political Protest: Workplace Rights & Duties

AUTHORS^*

Beth w. Mora

Wendy Musell

As the news of protests and elections dominate the media and popular culture, employees and employers alike are becoming more anxious about the bounds of political speech in workplaces. What speech is allowed, on and off work time? When can an employee's or employer's speech cross the line into a legal violation? And when can employees be lawfully fired for political speech?

Over the last decade, there have been nearly daily protests—including the January 21, 2017 inaugural Women's March—then the largest single-day protest in U.S. history, Black Lives Matter protests sparked by the murder of George Floyd in May 2020, anti-lockdown protests throughout the coronavirus pandemic, and more recently, protests concerning the Russia-Ukraine and Hamas-Israel wars.

As these political and social issues are discussed in workplaces, employees and employers need to know their rights and responsibilities.

The California and U.S. Constitutions guarantee everyone the right to free speech—including speech we may not like, even that which society rejects and despises.¹ However, the right to free speech does not extend to libel, slander, obscenity, true threats, or speech that incites imminent violence or law-breaking—nor does it extend to discrimination, harassment, or retaliation.²

And whether speech in the workplace is protected depends on whether an employee is private or public.

There is no general right of free speech in a private employer workplace. The First Amendment does not limit a private employer's right to regulate employee communications, nor provide any constitutional right for workers to express thoughts or opinions at work.³ However, private employers' rights to limit speech are subject to guardrails found in the California Labor Code and in the National Labor Relations Act (NLRA).⁴

Public employees—those who work for local, state, and federal government entities—are generally protected when they are speaking as private citizens about a matter of public concern. In contrast, public employees speaking in their official capacities are usually not speaking as citizens; as such, First Amendment protections generally do not apply.

Specifically, public employee First Amendment right to free speech retaliation claims are analyzed under a sequential five-step series:

1. The plaintiff spoke about a matter of public concern;
2. The plaintiff spoke as a private citizen and not as a public employee;
3. The plaintiff's protected speech was a substantial or motivating factor in an adverse employment action;
4. The state had an adequate justification for treating the employee differently from other members of the general public; and
5. The state would have taken the adverse employment action, even absent the protected speech.⁵

Generally speaking, employees in any California workplace cannot be fired simply because they engaged in a political protest since that is considered a protected political activity. California Labor Code section 1102 prohibits an employer from discharging or threatening to discharge an employee for following any particular "course or line" of political action or activity, such as a gathering or march organized to protest actions by local, state, or federal government officials.

Additionally, under labor code section 1101, an employer cannot "make, adopt, or enforce" any rule or policy that forbids or prevents an employee from engaging or participating in politics. The text of sections 1101 and 1102 does not distinguish between political activity within or outside of the workplace; the conduct is simply protected as described by the statute.

Protected "political activity" has been broadly defined to include not just "partisan" political activities, but also actions that promote social causes or movements. Participating in litigation, objecting to conduct one believes to be illegal, wearing symbolic armbands, and associating for the advance of beliefs or causes, have all traditionally been seen by the courts as protected political activities.⁶ Generally, courts have found that political speech and activities that occur outside of the workplace—such as a political protest away from work—are protected.

However, if the "political activity" significantly disrupts the employer's business or an employee's job duties, the employer may subject an employee to discipline up to and including termination. Labor code sections 1101 and 1102 do not protect political actions that promote or advocate overthrowing the U.S. government by force or violence.

Any employer who violates either of those code sections is guilty of a misdemeanor. The violation is punishable, in the case of an individual, by imprisonment in the county jail not to exceed one year or a fine not to exceed $1,000, or both.

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If the employer is a corporation, the violation is punishable by a fine not to exceed $5,000. An employee may also file a...