Obama or Romney?  “Yes” or “No” on Proposition 30?  With the election only several weeks away, these questions are starting to make their way into the workplace as political debates among co-workers are starting to break out in lunch rooms, hallways and around the water cooler.  While such political discussions usually consist of a polite exchange of viewpoints, some conversations can result in heated arguments.  Because political dialogue typically touches upon issues of race, religion, sexual orientation and other protected classifications, employers sometimes struggle with whether political expression should be allowed in the workplace.  The following are few tips that can help employers avoid liability and maintain collegiality in the workplace without infringing upon their employees’ ability to vote and engage in political expression. 

Political Expression

The Government Code prohibits public employers from restricting the political activities of any officer or employee.  In addition, the Labor Code prohibits employers from making or enforcing any policy that prevents employees from participating in politics, becoming a candidate for public office, and controlling or directing the employees’ political activities or affiliations.  Employers also may not coerce employees under threat of termination to follow or refrain from engaging in political action or activity under. 

However, notwithstanding these restrictions, public agencies may adopt rules and regulations prohibiting officers and employees from engaging in political activity during work hours and on agency premises.  This means agencies can implement a policy or enforce existing rules that essentially requires employees to perform work during the hours they are paid to work.  The rationale behind this is that employers have a legitimate business need to make sure that the work of the agency is carried out. 

Finally, public employers may prohibit officers or employees from participating in political activities of any kind while in uniform.  In addition, peace officers and firefighters may not wear their uniforms while participating in political activities of any kind.  Agencies can also prohibit peace officers and firefighters from engaging in political activity while on duty.

Campaign  Bumper Stickers and Posters

Employees who wish to decorate their own personal workspaces with campaign stickers and posters present special challenges.  For example, prohibiting employees from displaying campaign posters endorsing a particular presidential candidate in their own workspace may violate free speech.  On the other hand, the agency may be subject to a hostile work environment claim if a gay employee finds offensive a poster against same sex marriage.  Unless the agency has a policy prohibiting employees from displaying all forms of non-business related materials or a non-solicitation policy, employers should not try to suppress political displays in an employee’s personal workspace unless it creates an undue hardship on business operations.  However, if the display is insulting or derogatory towards a certain protected classification such as race or gender, the agency should investigate the matter pursuant to its anti-harassment, discrimination and retaliation policy.      

Time Off to Vote

All employees have the right to take time off to vote.  Employees can take off as much time as they need to vote.  However, no more than two hours of the time taken off for voting shall be without loss of pay.  In other words, employers are only obligated to provide employees with two hours of paid leave to vote.  Any additional time needed by the employee can be unpaid unless a collective bargaining agreement or personnel rule provides otherwise.  Further, 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 other arrangements are mutually agreed to between the employee and employer.  If the employee believes that time off will be needed to vote on election day, the employer must be given notice at least two days before the election. 

Conclusion

This post is only meant to provide an overview of issues employers face during an election season.  For example, this post does not cover sections of the Education Code regarding political activity by employees.  Because there are many aspects to political expression in the workplace, employers are encouraged to contact any of our offices with questions.