Free Speech in the Workplace

There have been many recent news stories about people losing their jobs due to taking a political stance or being involved in protests. A former employee of Taco Bell claims he was terminated for wearing a Black Lives Matter mask at work. On the other side, a journalist was terminated by the Washington Examiner after a video went viral showing that she faked helping a local business board up windows.

This has raised the question – Can an employee be terminated for political speech or lawful activity outside of work?

Free Speech

The First Amendment states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

This has led many people to rely on the misleading phrase, “It’s a free country, I can say whatever I want.” That is not entirely true, especially when it comes free speech in the workplace.

The First Amendment protects government employees from adverse employment action for exercising their free speech rights even if the employer’s action was prompted by a perceived rather than actual exercise of free speech rights. Heffernan v. City of Paterson, New Jersey (2016) US 136 S.Ct. 1412, 1417-1418.

However, the First Amendment does not establish or support a public policy forbidding private employers from terminating employees for exercising their First Amendment rights. Grinzi v. San Diego Hospice Corp. (2004) 120 CA4th 72, 84.

What this means is that an employee cannot bring a lawsuit against a private employer for a violation of the First Amendment because the First Amendment only restricts the government. In order to bring a wrongful termination lawsuit based on free speech, there must a statutory basis.

Example: Working Conditions

One example of statutorily protected free speech is when an employee complains about working conditions. There are multiple statutes, including the National Labor Relations Act and CalOSHA that protect employees—both union and nonunion—from being disciplined for discussing their work conditions. This has been established as a fundamental public policy. If there is a hazardous condition at work, the employee has an absolute right to make verbal complaints about the working environment because it promotes health and safety.

Expressing a political opinion does not have the same level of public benefit. Nevertheless, the law provides some protections for political activity. The protections are just not as absolute and consider the employer’s right to maintain goodwill.

Political Activity

Labor Code § 1101 makes it unlawful for an employer to enforce any rule or policy preventing employees from engaging in politics or running for office or tending to control or direct their political activities or affiliations. It is likewise unlawful for the employer to attempt to coerce or influence employees, by threat of discharge or loss of employment, to follow or refrain from following a particular course of political activity. Labor Code § 1102.

What is political activity? That is a question even courts have struggled to answer.

In 1946, the courts applied a much higher standard and held that “the words ‘politics’ and ‘political’ imply orderly conduct of government.” Lockheed Aircraft Corp. v. Superior Court of Los Angeles County (1946) 28 Cal.2d 481.

In 1979, the “orderly conduct of government” was extended to activist groups. Gay Law Students Assn. v. Pacific Tel. & Tel. Co., (1979) 24 Cal.3d 458, 488.

In 2013, a federal appellate court held that removing a “Gay/Lesbian Pride Month” poster from the break room was considered political activity. Nava v. Safeway Inc., No. F063775, 2013 WL 3961328, at *7–8, (Cal. Ct. App. Jul. 31, 2013) (unpublished).

Even though the definition of “political activity” has broadened over the years, an employer still has a defense if the termination was because of some other reason. If Taco Bell has a neutral dress code policy that employees cannot wear articles of clothing with personal messages, then the employee was terminated for a violation of the dress code policy regardless of the fact that the face mask made a political statement.

Lawful Activity Outside of Work

In the case of the Washington Examiner, the journalist who posed for a picture pretending to board up windows did not do anything unlawful. At the time, she was not working. Certainly, employers should not be able dictate what an employee does outside of work. Every day, hundreds of people line up to take pictures pretending to hold up the Leaning Tower of Pisa. Should they be terminated because they are not actually holding up the Leaning Tower of Pisa?

Labor Code § 98.6 prohibits employers from discharging, discriminating against, retaliating against or taking adverse action against an employee for “lawful conduct occurring during nonworking hours away from the employer’s premises.”

Once again, this is based on a fundamental public policy that employers are not allowed to dictate what occurs in the private lives of their employees. Unfortunately, there is no private right of action for Labor Code § 98.6. Employee rights must be enforced under the Labor Code § 96(k), which allows the Labor Commissioner to assert independently recognized constitutional rights on behalf of employees.

The Washington Examiner likely has an ethics policy that was violated, which could justify the termination. If not, the employee could file a complaint with the Labor Commissioner and request an investigation.

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