Joshua J. Borger
Partner, Berliner Cohen LLP
Email: Joshua.Borger@berliner.com
Boston College Law School; Newton MA
Josh practices commercial and civil litigation in a variety of areas, including unfair business practices, breach of contract, trademarks, trade secrets, fraud, employment, insurance coverage and litigation, Proposition 65, and general business litigation. In addition to his litigation work, Josh represents companies in nonlitigation matters, including employment matters and licensing agreements.
It's difficult to dispute that the Trump administration led to an increasing tension on social issues. And, people took to their social media accounts to express their opinions. Many employers joined in expressing their political opinions by supporting different movements. Thus, the political and social opinions of both employees and employers have invaded and pervaded the workplace. The inevitable clash leads to employees claiming that they have been terminated for their political and social opinions.
Employers may not control their employees' politics or terminate them for their political opinions. Labor Code Section 1101 (providing that no employer may make or enforce any rule "[c]ontrolling or directing, or tending to control or direct the political activities or affiliations of employees."); Labor Code Section 1102 (providing that "[n]o employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity."); Labor Code Section 96 (employers also may not terminate an employee for engaging in "lawful conduct" during nonworking hours). However, these statutes do not prevent an employer from expressing its political and social opinions in the workplace. Lockheed Aircraft Corp. v. Superior Court, 28 Cal. 2d 481, 486 (1946) (holding that nothing in Lab. Code Section 1101 "deprives an employer of the right of free speech and prevents him from publishing his political beliefs or views among his employees").
The term "political activity" under Sections 1101 and 1102 is interpreted broadly reflecting the almost indecipherable line between political and social issues: "These statutes cannot be narrowly confined to partisan activity. As explained in Mallard v. Boring (1960) 182 Cal. App. 2d 390, 395: 'The term "political activity" connotes the espousal of a candidate or a cause, and some degree of action to promote the acceptance thereof by other persons.' (Italics added.) The Supreme Court has recognized the political character of activities such as participation in litigation, the wearing of symbolic armbands, and the association with others for the advancement of beliefs and ideas." Gay Law Students Ass'n v. Pac. Tel. & Tel. Co., 24 Cal. 3d 458, 487 (1979). Based on these standards, in Gay Law Students, the California Supreme Court held that "the struggle of the homosexual community for equal rights ... must be recognized as a political activity." The court analogized the struggle for homosexual rights to the struggle for civil rights wages by blacks, women, and other minorities.
For better or worse, social media allows employers and employees to express their causes (and social rants) to a wide audience. Viewers can mistakenly associate an employee's social rants with the views of their employer or simply choose to punish an employer for employing an employee with certain political opinions. In certain areas, it could lead to boycotts and the closure of the company. Potentially to avoid such backlash, it was reported that Top Dog, a Berkeley-based hot dog chain whose owner promoted Libertarian views, fired an employee who was identified on social media as having attended The Unite the Right rally, a white supremacist rally that took place in Charlottesville, Virginia on Aug. 11-12, 2017. It was reported that the parties later agreed that the employee resigned to prevent a potential lawsuit.
Are California employers left with a Hobbesian choice: (1) fire the employee due to their views and risk a lawsuit; or (2) keep the employee, potentially lose other employees who do not want to associate with the person due to their views, and risk a boycott for employing the person? Maybe not.
In Nava v. Safeway Inc., 2013 Cal. App. Unpub. LEXIS 5452, the plaintiff, an employee of Safeway, was fired for removing a poster in the store announcing that June 2009 was "GAY/LESBIAN PRIDE MONTH." The plaintiff explained that he took down the poster because "he was 'extremely bothered' by the political agenda Safeway was apparently promoting (i.e., same-sex marriage)." The plaintiff's managers expressed disapproval of his position. The plaintiff was fired a week later, allegedly because he objected to Safeway's policy of seeking to have its employees and customers support "the gay/lesbian political agenda." The plaintiff sued Safeway for violating Section 1101.
The Court of Appeal reversed the trial court's dismissal. The court found the "key question" to be whether plaintiff was fired because of his personal political views or because he removed and disposed of Safeway's poster. The court reasoned that Safeway was permitted to terminate plaintiff solely for tearing down the poster because plaintiff would have interfered with Safeway's right to free expression and tampered with company property. This would not constitute a violation of Sections 1101 or 1102. However, if plaintiff was fired for his political views -- that is, Safeway was declaring that it would not tolerate such political views -- then Safeway's actions violated Sections 1101 and 1102.
Relating Nava to more current events, the reasoning likely would not permit an employer to terminate an employee for merely being present at the U.S. Capitol when it was stormed on Jan. 6, 2021, although the employer could terminate the employee for engaging in illegal conduct such as storming the Capitol. But, a lesson from Nava is that an employee also has no right to interfere with the employer's speech or disrupt the workplace. If the employee insists on bringing his politics or social views into the workplace, then the employee risks a lawful termination for disrupting the workplace. In sum, the Labor Code does not allow the employee to rant at work.