Employers can urge workers to support political causes, within limits

Do partisan politics belong in the workplace? As next week's presidential election draws closer, and deep political divisions look to persist long after the ballots have been counted, the question has been front and center for employers and workers across the nation.

But a proposed class action Uber drivers filed against the company last week has introduced a novel angle to the issue. While conversations to date have largely focused on what rights workers have when it comes to voicing political opinions inside - and increasingly, outside - the workplace, last week's lawsuit, which alleged Uber is pressuring drivers to support a state ballot measure, turns the focus to the rights of employers. To what extent are they allowed to voice their political opinions? And can employers urge their workers to vote in a particular direction -- particularly when doing so could impact the future of their business?

Last week's proposed class action alleged Uber violated sections of the state Labor Code that are rarely litigated in California, attorneys say: Section 1101, which bans employers from using their economic power to control or direct the political activities of their employees; and Section 1102, which forbids employers from influencing their employees' political activity by threatening discharge or loss of employment.

The lawsuit, which identified a proposed class of 200,000 drivers, alleged Uber pressured them to vocally support Proposition 22 by saying they could lose their jobs if the ballot measure doesn't pass on Nov. 3. The measure, which is partly funded by Uber, would exempt rideshare drivers from Assembly Bill 5 and allow the company to continue classifying its drivers as independent contractors instead of employees.

Uber filed a motion to remove the case to federal court this week, but a federal judge remanded it back to state court Tuesday. The drivers have filed a request for a temporary restraining order to stop Uber from allegedly pressuring its drivers into supporting Proposition 22. Valdez et al. v. Uber, CGC20587266 (San Francisco Super. Ct., filed Oct. 22, 2020).

Labor Code Sections 1101 and 1102 "do come up in the employment context from time to time, but it's more typically involving situations where employees have engaged in a particular type of political speech and assert they've been retaliated against," said David A. Lowe, one of the plaintiffs' attorneys and a partner at Rudy, Exelrod, Zieff & Lowe LLP. "It's not as common for a case like this."

Travis Gemoets, who represents management as a partner at Jeffer Mangels Butler & Mitchell LLP and is not involved in the case, agreed litigation around these Labor Code sections is rare in California, and occurs more frequently during elections. But he also emphasized private employers' political activity is protected under the U.S. Supreme Court decision in Citizens United v. Federal Election Commission (2010). The decision held that corporations have the right to use their assets to support political candidates and positions.

According to the case, employers can "give employees educational material to make their political positions clear," Gemoets explained. "That's federal law. ... Where California law would prevail is if there is in fact a claim from an employee of discrimination or retaliation.

"Let's say that Proposition 22 passes, and Uber then goes around and says, 'All of you who didn't support us in this campaign ... you're fired, we're taking you off the platform,'" Gemoets said. "Then and only then you have a violation."

Derek K. Ishikawa, who represents employers as an associate at Hirschfeld Kraemer LLP, said there's a "difference between providing information and attempting to coerce. I haven't seen a very clear breakdown of the difference between the two."

The information Uber has provided to drivers, which suggests the company would be capable of employing fewer of them if Proposition 22 fails, could be construed as merely information, he said.

Whether Proposition 22 passes or not, though, Gemoets said Uber will likely see an uptick in litigation if drivers who did not support the ballot measure end up losing their jobs.

"They have to be very cautious to treat everyone the same," he said.