• Sasha Struthers

Can an employer fire an employee for their politics? Yes and No.



Politics in the workplace is one of the hardest employment aspects to regulate. One one hand employees have a First Amendment Right to Free Speech, on the other hand they do not have a right to be offensive and hateful. With the United States Capital Hill insurrection a few large corporations fired executive level employees for attending, but in California you cannot fire an employee that easily.


First, understand at-will employment does not let an employer fire for a discriminatory, retaliatory, harassing or otherwise impermissible reason.


California is an "at-will" employment state (Labor Code §2922), which means an employer can fire an employee without or without cause and an employee can quit whenever they like. At-will status is thrown out the window if there is another policy (oral, written or implied), contract, agreement or collective bargaining agreement that requires "for cause" termination or if the employer fires an at-will employee for an unauthorized reason, one such reason being sharing concurring/opposing/differing political views.


Second, employers cannot control the political aspects of their employees' lives.


California gives employees wide protection to engage in politics, including running for a public office and politically affiliating with whom or whatever they would like to politically affiliate with. (Labor Code § 1101). Employers may not adopt policies that thwart these rights.


Employees may openly support Trump in an otherwise Pro-Biden workplace, and vice versa. However, an employee is not permitted to harass, threaten, intimidate or display other inappropriate behavior towards an employer or other employees.


Third, employers cannot terminate an employee for an arrest or detention that did not result in a conviction.


This one is pretty straight forward, but also a little loose. (Labor Code § 432.7). If the employee was arrested or detained for partaking in an illegal activity or activity designed to incite violence or hate, regardless if the employee was convicted of a crime, that may be grounds for termination.


Fourth, if you do decided to terminate an employee based on their off-the-clock political activity be very careful as you may be liable for lost wages and reinstatement.


The Labor Commissioner, a very employee-friendly California employment agency, has the authority to investigate wrongful terminations based on an employees' off the clock political activity that violates the above statutes. (Labor Code § 96(k)). If the Labor Commissioner finds that the employer wrongfully terminated an employee then the employee can be awarded back pay, other penalties and be reinstated to their job.


Employers often find out about their employees off-the-clock activity from social media. That was how many people got terminated in other states for the Capital Hill insurrection, they posted it on their social media. However, California has some of the most progressive employee friendly laws in the country that give little room to employers.


Suggestions

  • If employees are politically vocal at work have a policy about the appropriateness of such talk to avoid harassment and hate.

  • If you believe an employee has committed an illegal political activity off-the-clock, document your evidence.

  • Review your individual employee agreements to be sure there is nothing in there that terminates "at-will" presumption.

  • Review your workplace policies to be sure there is nothing in there that prohibits an employee from engaging in legally protected activities.

  • Always contact an employment attorney before you terminate an employee, especially for their conduct outside of the workplace. There are several employment laws that could create liability for you if the termination is not handled correctly or found to be for an illegal purpose.

If you have any employee issues, employment law questions or questions regarding this post feel free to reach out to me. You may contact me by phone at (818) 306-0686 or by email at sasha@struthers.legal


Visit my website at struthers.legal and subscribe to my newsletter to get up-to date information on employment laws. You can also follow me on Twitter and Youtube for employment tips and law updates.


The information in this post is for general information purposes only. Nothing on this post should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.

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Disclaimer- The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. I invite you to contact me and welcome your calls, letters and electronic mail. Contacting me does not create an attorney-client relationship. Please do not send any confidential information to me until such time as an attorney-client relationship has been established. 

© 2021 by Sasha Struthers.