Feb 8

Why Your Employer’s Politics Don’t “Trump” Your Job

Tags: , , ,
Generally, an employer can't fire you for your political activities, no matter how hair-raising they might be.

Generally, an employer can’t fire you for your political activities, no matter how hair-raising they might be.

Even as the winds of an FBI investigation threaten to blow away Hillary Clinton’s “house of cards,” the former Secretary of State continues to have high approval ratings in L.A. County – and that can spell trouble for employees who plan to vote for Donald Trump. Employers are increasingly discriminating against employees because of their political activities or affiliations. Luckily, an employer’s political beliefs don’t “trump” an employee’s job in California. That’s because California is one of three jurisdictions that prohibit political retaliation in the workplace. And an employer who retaliates against an employee because of his “political activity” will owe him penalties higher than the Trump Towers.

I. What Kind of Employee “Political Activity” Does California Law Protect?

Labor Code section 1101 prohibits an employer from making, adopting, or enforcing a rule or policy that: (1) forbids or prevents an employee from engaging in politics or becoming a candidate for public office; or (2) “tends to control or direct” his political activities or affiliations. Similarly, Section 1102 prohibits an employer from threatening to fire an employee to “coerce or influence” him into adopting or following (or not adopting or follow) any particular “course or line of political action or activity.” In short, an employee has a fundamental right to engage in “political activity” without interference or retaliation from his employer.1

The concept of “political activity” under Sections 1101 and 1102 is incredibly elastic. Surely, one who identifies himself as a “Trumpster” or places a Trump bumper sticker on his personal vehicle engages in a political activity.2 But “political activity” means more than political affiliation. The espousal of any cause, as long as it relates to the “orderly conduct of government,” is also political activity.3 Thus, attending a gay rights rally is a political activity.4 Attending an ISIS rally isn’t. But what’s good for the goose is good for the gander. If advocacy of gay rights is a political activity, so is opposition to gay rights.

II. When Does California Law Not Protect Non-Violent “Political Activity”?

The right to engage in non-violent political activity isn’t absolute. Nothing stops an employer from firing an employee whose proselytizing at work interferes with his job or bugs co-workers who have told him to knock it off – even if his preaching amounts to religious expression.5 Similarly, Labor Code section 96(k), which authorizes the Labor Commissioner to hear claims for loss of wages as the result of demotion, suspension, or discharge for “lawful conduct occurring during nonworking hours away from the employer’s premises,” suggests that the Legislature didn’t intend to protect on-duty or on-premises political activity.

Even the right to engage in non-violent political activity after work isn’t absolute. Section 98.6(c) lets an employer force an applicant for a nonunion position to sign a “contract” forbidding conduct that: (1) “directly conflicts” with the employer’s “essential enterprise-related interests”; and (2) “materially and substantially disrupts” the employer’s operations.6 Even then, the employer can’t just fire him for attending a weekend Trump rally. The employee’s attendance at the rally might cause a scene at work, but unless he works for Hillary’s political consultants or criminal defense attorneys, the rally is unlikely to conflict with any enterprise-related interests. 

III. What Can an Employee Get If His Employer Retaliates Against Him Because of His “Political Activity”?

Employers can violate Sections 1101 and 1102 in a number of ways. Labor Code section 98.6(a) prohibits anyone from discharging an employee or discriminating, retaliating, or taking any adverse action against any employee or applicant for employment because the employee or applicant engaged in any political activity.7 In fact, an employee doesn’t have to engage in political activity or do anything at all. Section 98.6(e) prohibits an employer (or person acting on his behalf) from retaliating against an employee because the employee’s relative has, or the employer believes has, engaged in political activity.8

The remedies for a Section 1101/1102 violation are severe. Section 98.6 entitles an employee to reinstatement, reimbursement for any wages and benefits, and a civil penalty of up to $10,000 per violation.9 Moreover, he can file a common law cause of action for retaliation in violation of public policy and seek damages for pain and suffering and punitive damages.10 Similarly, Section 98.6 entitles a job applicant to employment and any wages/benefits that he lost because his prospective employer refused to hire him or simply made him a discriminatory job offer.11 (Unfortunately, the $10,000 civil penalty is only  available to “employees.”)

  1. Ali v. LA Focus Publication, 112 Cal.App.4th 1477 (2003). 

  2. Gay Law Students Ass’n v. Pacific Tel. & Tel. Co., 24 Cal.3d 458, 487 fn. 16 (1979). 

  3. Mallard v. Boring, 182 Cal.App.2d 390, 395 (1960); Lockheed Aircraft Corp. v. Superior Court, 28 Cal.2d 481 (1946). 

  4. Gay Law Students Ass’n, 24 Cal.3d 458, 487 fn. 16. 

  5. Silo v. CHW Med. Found., 27 Cal.4th 1097 (2000). 

  6. Lab. Code §98.6(c)(2)(A). 

  7. Lab. Code §98.6(a); Hollie v. Concentra Health Services, Inc., 2012 WL 993522, at *6 (N.D. Cal. Mar. 23, 2012). 

  8. Lab. Code §98.6(e), (g). 

  9. Lab. Code §98.6(b)(1), (3). 

  10. Leibert v. Transworld Systems, Inc., 32 Cal.App.4th 1693, 1703 (1995). 

  11. Lab. Code §98.6(c)(1). 

Ben Rothman, Esq.

Ben Rothman is a Los Angeles-based attorney practicing in the areas of personal injury, employment, and workers' compensation on a "no recovery, no fee" basis. Call him at (424) 465-2948 for a free, no-obligation consultation.