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.