Employment law and freedom of speech

Employee political speech has become one of the hottest topics for California employers. This has been driven by the ubiquity of social media coupled with high-profile movements and events -- such as Black Lives Matter, LGBTQ rights, anti-vaxxers, #MeToo, and the violent storming of the U.S. Capitol at the end of the Trump presidency.

This swell in employee political speech has put California employers in a predicament. On the one hand, employees have some rights to engage in political speech and to express their political and social views. On the other hand, employers are entitled to take actions to foster a welcoming workplace, minimize disruption of their operations, and preserve their good reputations.

Fortunately, by understanding the applicable law, best practices, and prevailing trends, California employers can reduce the risk of negative legal outcomes in this complex area of law. Here are the top six key issues California employers should be aware of.

1. Public employers must consider the impact of the First Amendment on their regulation of employee speech

Unlike private employers -- whose conduct typically does not implicate First Amendment concerns -- a public employer's regulation of employee speech is subject to First Amendment considerations, with some notable exceptions. Moser v. Las Vegas Metro. Police Dep't, 984 F.3d 900, 908 (9th Cir. 2021).

Courts analyze whether a public employer's regulation of its employees' speech runs afoul of the First Amendment based on a five-part test. Initially, the employee must establish a prima facie case, that the speech: (1) is of public concern; (2) was spoken in the capacity of a private citizen, not as part of the speaker's job duties; and (3) was a substantial cause of the adverse employment action at issue. Then, the burden shifts to the employer to show that: (4) it has legitimate administrative interests that outweighs the employee's speech at issue; and/or (5) that the adverse employment action would have occurred regardless of the speech. Eng v. Cooley, 552 F.3d 1062, 1071 (9th Cir. 2009).

Each of these elements is highly fact-dependent. For the fourth element, courts use a balancing test, known as Pickering balancing. Under this inquiry, the public employer generally must show that the speech in question is likely to disrupt the public employer's operations, or impact its reputation. Factors include the extent of public accountability the speaker's role entails, the impact on close working relationships, and whether the speech impedes the performance of the speaker's duties. For example, a statement by a clerical worker to a coworker espousing, say, offensive sentiments towards "liberals," might be less disruptive to an employer -- and therefore subject to First Amendment protection -- compared to a widely viewed tweet espousing racist views by a police officer who interfaces regularly with the public.

In sum, although public employee speech is subject to some First Amendment protections, the law affords public employers significant means of regulating such speech (in severance agreements, for example) to achieve legitimate operational objectives.

2. Employers may not prohibit employees from participating in all political activities

Employers may not forbid or control employee participation in politics or political activities and affiliations. Cal. Lab. Code Sections 1101, 1012; Cal. Gov't Code § 3203; Cal. Educ. Code Sections 7050-7058. Political activities are not narrowly confined to partisan political activity, and may include espousal of a cause and action to promote acceptance by others.

3. Employees have no right to engage in political activity during working hours

Public and private employers are still permitted to prohibit employees from engaging in political activities while on duty, such as duty distributing materials or making telephone calls for campaign purposes. See L.A. Teachers Union v. L.A. City Bd. of Ed., 71 Cal. 2d 551, 557-58 (1969). Public employees may not appear in uniform for political activities or engage in political activities during working hours. Cal. Gov't Code Sections 3206, 3207.

4. Some speech is entitled to more protection in the workplace

Some speech in the workplace is entitled to more protection. For example, employers may not retaliate against employees for complaining about harassment or discrimination or requesting a reasonable accommodation. Cal. Gov't Code Section 12940. Activities such as discussing wages or engaging in whistleblowing of health and safety violations are also protected activities. Cal. Lab. Code Sections 1197.5(k), 1102.5; Cal. Gov't Code Section 8547 (public sector employees).

Labor law may also apply to speech regarding working conditions or that criticizes the employer. For example, in June, the National Labor Relations Board alleged that Google violated the National Labor Relations Act for punishing employees who protested Google's contract with United States Customs and Border Protection.

5. Policies can help prevent problems

Employers should prepare non-discriminatory policies to lay out expectations regarding employee speech in advance of any free speech conflicts. Typical policies include those for social media, dress codes, office décor, technology usage policies, attendance, and anti-harassment/ discrimination policies.

For example, social media policies can make clear that if the person's off-duty conduct has a direct impact on the employer's reputation or financial well-being, discipline up to and including termination may result. Similarly, while termination would not be permitted merely because an employee is arrested at a political protest, an employer would be permitted to discipline an employee for failing to comply with a reasonable attendance policy.

Employers can also establish dress codes regarding whether symbols, slogans, and other messaging is permitted to be visible to customers. This issue was raised recently in the Frith v. Whole Foods case where a federal court in Massachusetts dismissed the employees' claim that they were subjected to racial discrimination because they were terminated for wearing Black Lives Matter face coverings. 20-cv-11358-ADB (D. Mass. Feb. 5, 2021), appeal docketed, 21-1171 (1st Cir. Mar. 4, 2021).

6. The answers are often not clear cut

Legal counsel may be necessary to fully analyze risks. Where an employee engages in a constitutionally protected lawful activity, the employer may be prohibited from discriminating against the employee for engaging in the conduct. Cal. Lab. Code Sections 96(k), 98.6; Grinzi v. San Diego Hospice Corp., 120 Cal. App. 4th 72 (2004). However, further analysis is typically needed to consider the type of activity, the employee's position, and other factors.

Planning how to handle employee free speech issues will help to minimize legal risks and disruption when the inevitable conflicts arise. 