The rising intensity of political debate in recent years and this fall’s wave of OCCUPY protests nationwide have created unique challenges for public sector employers. Employers are used to responding to mainstream political disputes in the workplace with the time-tested standby: “Republican or Democrat, it makes no difference, and please just go back to work.” But now public employers have to contend with a different political landscape, a different level of emotional involvement by employees, and entirely new political causes. One such cause is the Tea Party movement, one of whose central tenets is the need for a sharp decrease in government spending and in the overall role of public agencies themselves. Second, on a different axis, the new OCCUPY movement attacks the private sector’s supposed excessive role in government. This is at least the purpose as articulated by some of the movement’s endorsers, such as film maker Michael Moore, former New York Times writer Christopher Hedges (who quotes literary figures like Albert Camus and W.B. Yeats in support of his economic arguments), and even Harvard law professor Lawrence Lessig (in his new book “Republic, Lost”). Significantly, although the OCCUPY target for reform is the private sector, it is clear the public sector has had to bear the brunt of its physical effects. The tents and protests are typically on public property, with City police forces having to dedicate substantial resources to watching out for and responding to any disturbances, and in a few cases to taking even more drastic action.
As to employment law as well, all of this corresponds to increased pressure on public employers to address issues raised by increasing and more intense political activities by employees, both at the workplace and outside on personal time, sometimes through organized protest activities.
How is a public employer to handle increased employee work time spent discussing or even arguing about political issues?
How is a public employer to deal with employees who engage in “cubicle wars” by posting dueling ideological cartoons and slogans at their workplaces?
How does a City employer respond, if at all, to employees who actively participate in organized protests on public property and identify themselves to the media as City employees – while at the same time the City’s own police force is struggling to maintain order in the protests?
Finally, how does a public sector employer respond to the contentions of a discharged young manager who claims that the employer’s reason for the firing was a pretext, and that the real reason was the employee’s actions in advancing ideological goals adverse to the agency?
The answers to many of these questions will come from California statutory laws. Here are some of them. As can be seen, most reflect the need to create viewpoint-neutral rules that address the scenarios in advance.
In the public sector, agencies can promulgate rules prohibiting political activities at the workplace, even including some political activities during personal time. As a threshold matter, California Government Code section 3203 does require that “[e]xcept as otherwise provided . . . no restriction shall be placed on the political activities of any officer or employee of a state or local agency.” But, notwithstanding this, section 3207 provides: a local agency “by establishing rules and regulations, may prohibit or otherwise restrict the following: (a) Officers and employees engaging in political activity during working hours” and “(b) Political activities on the premises of the local agency.”
The rules will have to conform to California law on public employees in uniform, including laws concerning peace officers and firefighters. Government Code section 3206 provides that “[n]o officer or employee of a local agency shall participate in political activities of any kind while in uniform.” As to peace officers and firefighters, California law provides that their employers cannot prohibit them from engaging in “political activity,” except when they are on duty or when they are in uniform. (Cal. Gov. Code, §§ 3302(a), 3252(a).)
Next, laws from the private sector counsel that public agency rules on political activity should not even appear to control or coerce particular political views. Labor Code section 1101 provides: “No employer shall make, adopt, or enforce any rule, regulation, or policy: (a) Forbidding or preventing employees from engaging or participating in politics . . . ” or “(b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees.” Labor Code section 1102 provides: “No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.” Public employers have strong arguments that these particular statutes do not apply to them, given current case law interpreting the Labor Code. Nevertheless, the safest course is altogether to avoid any control or coercion of the type prohibited by these statutes.
Aside from promulgating effective rules, another way to resolve employment issues concerning politics remains the common sense adage about just “going back to work.” Public employers generally have rules that prohibit using excessive personal time during work hours. The employers can invoke such viewpoint-neutral rules in most cases to stop political disputes and debates, and similar matters that affect employee productivity at work.
Finally, for public employers, the First Amendment places restrictions on the ability to discipline employees for speech activities. Generally, an employee cannot be disciplined for their speech (1) on matters of “public concern” (2) that are outside the scope of the employee’s “official duties,” and (3) when the disciplinary action cannot survive a balancing test that weighs, in essence, disruption of a government agency’s operations against the importance of the speech interest at issue. As courts have phrased it, the balancing is “whether the [state]’s legitimate administrative interests outweigh the employee’s First Amendment rights.” For many free speech claims, an employer will be able to confirm at the outset that the claim lacks merit because the speech does not address an issue of “public concern” (e.g., it is complaints about office equipment or over who should have particular assignments), or because it turns out to be speech pursuant to “official duties” (e.g., it is speech in which the employee is paid to engage as part of their job). But what about an employee who gives a speech at a protest in a public park, strictly on personal time, about issues claimed to have grave importance to the country? The employee’s free speech claim might come under element (3) above, the balancing test. An employer will then have to determine if, for example, the employees’ identifying themselves as City employees and decrying the police, or making very inflammatory comments that will later hinder them in their work – in context – not only break a City personnel rule, but also cause such workplace disruption as to permit discipline under the First Amendment balancing test.
The answers to the questions posed above are sometimes easy and sometimes not, but careful considerations of this area of the law, in the current political climate, is clearly necessary.