Election day, November 3, 2020, is only several months off. Almost all agree the election will be historic, with a high-level of public activity anticipated, whether through donations, rally participation, letter writing, buttons, t-shirts, banners, yard signs, word-of-mouth, or social media. Protests and even civil disobedience are possible. Election times present unique issues for California public employers. The following is a short list of some of these issues, and a discussion of the relevant laws.
Employee Free Speech on Social Media, at Protests and Rallies, and in the Office
What if an agency employee posts public messages on Facebook, Twitter, or other social media platforms favoring one side in the election? What if the messages use such lurid or harsh terminology or imagery that fellow agency employees or members of the public complain? Political speech rests at the core of what the First Amendment protects, and Courts are extremely reluctant to allow a government agency to punish or attempt to censor the speech, even if the individual works for the government agency in question.
At the same time, statements by employees on social media that harm or threaten to harm the agency’s operations in a sufficiently severe way can serve as the basis for discipline, notwithstanding constitutional free speech protections. Examples include statements on social media that give away important and legitimate confidential information of the agency and statements in which the employee wrongly states he or she speaks on the agency’s behalf. Also, statements by law enforcement officers that show harsh prejudice or bias if made public may cause community members to fear the officer will not protect them, and may make fellow employees sufficiently uncomfortable in the workplace that the officer has effectively disrupted the agency’s operations. The employee will not be able to claim First Amendment immunity from discipline just because the statements appeared in the course of a political discussion.
The same considerations apply to public employee conduct at protests and rallies that can tend to disrupt an agencies’ operations or sufficiently undermine its mission. That said, Courts are unlikely to find that mere participation in these activities outside of work will be sufficient to justify discipline of the employee.
Under First Amendment principles, an employee cannot be disciplined for his or her speech (1) on matters of “public concern” (2) that is outside the scope of the employee’s “official duties” and (3) that prevails in a balancing test which 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.”
Political Activities on Work Premises or During Work Time
Under California law, public agencies can prohibit employees from engaging in “political activities” at the actual workplace, even including political activities during personal time at work. Government Code 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 Government Code provides that public agencies should not place restrictions beyond these, however. Section 3203 provides: “Except as otherwise provided . . . no restriction shall be placed on the political activities of any officer or employee of a state or local agency.”
Excessive Workplace Discussions About Politics
What if employees do not actively “electioneer” at the office, but do distract themselves with lengthy discussion and debates about the election. Public employers should and generally do have rules that prohibit using excessive personal time during work hours. There is nothing wrong with invoking these rules in this circumstance, as long as agencies apply the rules without showing favoritism to one side in a debate or issue. The First Amendment generally authorizes rules at an agency’s office that may affect speech as long as the rules qualify as “reasonable” and “viewpoint-neutral.”
Political Activities in Uniform
California has statutes that prevent public employees from being in uniform when engaging in political activities. 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 public safety officers and firefighters in particular, 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. (Gov. Code, §§ 3302(a), 3252(a).)
Coercing or Controlling Employee Political Activities
Next, public agencies should never appear to be trying to control or coerce their employees into voting a certain way or holding particular political views. 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.” Labor Code section 1101 prevents employers from promulgating rules that have the same effect. It 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.” 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.
Employee Use of Any Agency Resources for Partisan Politics
What if an employee attempts to use copy machines, office supplies, office e-mail, office computer systems, or other resources for political activity related to the November election, and actually presents a good reason why this use advances a bone fide purpose of the agency? They could claim educational benefit or public outreach. Unsurprisingly, California law prohibits this use. Merely by way of example, the California Supreme Court in Stanson v. Mott in 1976, held squarely that agency use of resources to support one side in an election (in that case to support passage of a bond measure) violates state law. Enacted in 2001, Government Code section 54964 writes into law the Stanson holding. In addition, Government Code section 8314 provides: “It is unlawful for any elected state or local officer, including any state or local appointee, employee, or consultant, to use or permit others to use public resources for a campaign activity . . . . .”
Another example, for California public educational institutions in particular, is Education Code section 7054, which provides: “No school district or community college district funds, services, supplies, or equipment shall be used for the purpose of urging the support or defeat of any ballot measure or candidate, including, but not limited to, any candidate for election to the governing board of the district.” The statute imposes criminal penalties for a violation.
Time Off to Vote
This year will see large-scale efforts to facilitate voting by mail. But in California counties, voting in-person will still serve as an option (potentially with a several-day span for voting to allow for social distancing). Under California law, employees have the right to take enough time off from work to vote, if they are unable to do so during off-work hours that the polls are open. Elections Code section 14000(a) provides: “If a voter does not have sufficient time outside of working hours to vote at a statewide election, the voter may, without loss of pay, take off enough working time that, when added to the voting time available outside of working hours, will enable the voter to vote.” Section 14000(b) provides: “No more than two hours of the time taken off for voting shall be without loss of pay.” (Emphasis added.)
Any additional time needed by the employee can be unpaid unless a collective bargaining agreement or personnel rule provides otherwise. Further, also under Section 14000(b), time off for voting shall be only at the beginning or end of the regular working shift, whichever allows the most free time for voting and the least time off from the regular working shift, unless the employee and employer agree to other arrangements. Under Section 14000(c), if the employee believes that time off will be needed to vote on election day, he or she must give the employer notice at least two days before the election.
Those who work in and manage government agencies can reflect that the upcoming election represents a moment of significant national decision in the midst of a health crises, an economic crisis, and unprecedented levels of public protest and unrest. Particularly in these circumstances, questions regarding free speech and political activities of agency employees can present complex legal issues, and in many situations it is prudent to seek advice of counsel.