Politics and Personnel Issues

Employer Considerations for the Upcoming Election

On the cusp of the November 2020 election, employers may wonder what rights employees have with respect to taking time off for voting, bringing political ideology to the workplace, and engaging in political activities. Given the national attention on racial equity and justice, many employers have also contemplated promoting their political views as an organization, either internally or to the public. To ensure you are not infringing on employee rights, below are important considerations to keep in mind as Election Day approaches.

Employee Time off Rights for Voting in California

If an employee does not have sufficient time outside of working hours to vote in a statewide election, they are entitled to take up to two hours of paid time off to vote. If an employee requires more than two hours to vote, they are entitled to additional unpaid time off. You may not require the employee to use accrued vacation or PTO for this purpose. Exempt employees who take time off to vote are entitled to their regular salary so long as they perform any work in the workweek.

Employers may require employees to use the time off only at the beginning or end of their shift, whichever allows for the most time to vote and the least time off from working. Employees who need time off to vote are obligated to provide at least two working days' notice to their employer.

Note: Governor Gavin Newsom's executive order requires each county's election officials to send vote-by-mail ballots to registered voters and provide early polling locations. However, the executive order does not affect employers' obligation to provide paid time off for voting.

Additionally, at least 10 days before every statewide election, employers are required to post a "Time Off to Vote" notice in a conspicuous place at work. If you have an all-in-one California and federal postings poster, this notice is probably already in your workplace. However, if your office is operating remotely, consider mailing this notice to your remote workers 10 days before the election.

Considerations When Promoting a Political Message

Many companies have taken a stance on social justice issues, whether internally or to the public. Whether promoting a political viewpoint or advocating for a candidate is right for your organization, consider perceptions by your customers and clients, impact on employee morale, and alignment with your company's values.

While private employers are generally permitted to engage in political speech, they cannot attempt to coerce or control the political activities of their employees. Notably, Labor Code sections 1101 and 1102 prohibit employers from making, adopting, or enforcing any rule or policy:

• Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office;
• Controlling or directing, or tending to control or direct the political activities or affiliations of employees; or
• Using the threat of job loss to coerce, influence, or attempt to coerce or influence employees to take or refrain from taking any particular course of political activity.

As such, if you do promote a political message, assure that your message is not coercive and that you do not attempt to influence your employees' political activities or beliefs.

Employees and Free Speech Protections

Some employers have recently made national news regarding their dress code policies as they pertain to political speech in the workplace. The First Amendment's free speech protections do not extend to private employees, so employers are generally permitted to ban the use of political slogans and other speech, and may prohibit employees from distributing political materials and soliciting donations for political candidates or causes at work. If you wish to ban political speech in the workplace, make sure to set clear guidelines in your policies regarding dress code, office décor, and employee conduct.

If you implement a policy banning political slogans, dress, or speech in the workplace, it is a best practice to apply the policy consistently regarding all viewpoints. Notably, the California Labor Code prohibits employers from adopting or enforcing any rule or policy that tends to control or direct the political affiliations or activities of employees. If you cherry-pick application of the policy — or draft it to exclude certain viewpoints or political parties — it may lead to a discrimination claim.

Employers should keep in mind that Section 7 of the NLRA protects employees when discussing the terms and conditions of employment, even on social media. This encompasses, for example, discussions regarding wages, hours, working conditions, safety, treatment by management, and unionization efforts. As such, employers are not permitted to restrict speech on these topics, even those with political undertones.

The NLRB has clarified that employers may discipline employees for speech that is discriminatory, harassing, or threatening, such as racist or sexist comments, in accordance with your anti-harassment and code of conduct policies.

Disciplining Employees Based on Political Activities Outside of Work

California law prohibits employers from terminating, or otherwise retaliating against employees for their political activities or beliefs.

However, this is different from a situation where the employee's outside political activities interfere with work. For example, if an employee misses work to attend a protest or if the employee runs for office and is unable to meet their work obligations, the employer is permitted to discipline or terminate the employee based on legitimate business reasons, unrelated to the political activity.

May I encourage my employees to engage in political activities?

Yes. Employers are free to encourage employees to participate in civic duties, such as voting and volunteering at the polls so long as the employer does not require employees to support any specific candidate or issue. You may also offer employees additional paid or unpaid time off for these purposes, in accordance with your policies.

Join CEA's Webinar on October 14, Politics, Pot, and Pets in the Workplace >>

More questions before the upcoming election? Do not hesitate to call us at 800.399.5331.