“Covfefe” and the Workplace – California Labor Code’s Anti-Retaliation Provisions in the Modern Day Political Workplace

Often, during a presidential election, political discussions dominate news, social media, household meals, social gatherings and the workplace. The 45th President of the United States of America’s term in office has arguably garnered more attention than any other President in our nation’s history to date. On May 31, 2017 the President issued a tweet which included the word “covfefe” resulting in mass hysteria as well as closely followed mockery; evidencing the intense heated political climate.

A May 2017 American Psychological Association survey found American workers are more likely to say they are feeling stressed and cynical because of political discussions at work now than before the 2016 presidential election.¹ Key take away’s from the survey include:

• 26% of full-time and part-time employed adults said they felt tense or stressed out as a result of political discussions at work since the election, an increase from 17% in September 2016 when they were asked about political discussions at work during the election season.
• 21% said they have felt more cynical and negative during the workday because of political talk at work.
• 54% said they have discussed politics at work since the election.
• 40% of American workers say it has caused at least one negative outcome, such as reduced productivity, poorer work quality, difficulty getting work done, a more negative view of coworkers, feeling tense or stressed out, or increased workplace hostility. This is a significant increase from the pre-election survey data, when 27% reported at least one negative outcome.²

While increased stress and reduced productivity are cause for concern for any employee and employer, the increased infusion into the workplace of politics, personal use of the internet, social media and relating conversations is similarly alarming, resulting in potential legal claims.

How should an employer respond? Asking employees to cease engaging in the use of the internet or cease engaging in social media would likely result in an employee rebellion of epic measure. While at the same time, American politics continues to be eventful while stressful. Thus, it is not surprising that the workplace will have to cope with this dynamic.

Further, at times seemingly innocent comments or conversations in the workplace about “politics,” a social media group, or weekend activity can lead to claims of discrimination, harassment or retaliation in violation of the California Fair Employment and Housing Act’s anti-discrimination, anti-harassment and/or anti-retaliation laws. For example, workplace discussions about a particular political issue may include mention of person’s gender, race, national origin, sexual orientation, age or religion as well as related views on social issues such as immigration, women’s rights and healthcare, which often are polarizing issues on which there are strong and opposing views among employees. The potential for heated disagreements, inflammatory as well as impulsive remarks is apparent. Unfortunately, such comments may result in claims of discrimination, harassment or retaliation.

Hence the obvious question, can employers limit their employees’ political speech in furtherance of a drama-free work environment? No; it is never that simple for the employee and employer relationship. Political discussions can be problematic at times, but prohibiting them altogether is against California’s public policy.

California Labor Code Section 1101 prohibits employers from making, adopting or enforcing any rule, regulation or policy that:
(a) forbids or prevents employees from engaging or participating in politics or from becoming candidates for public office, and
(b) controls or directs, or tends to control or direct the political activates or affiliation of employees.³

Further, California Labor Code §1102 provides:
No 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.⁴

Meaning, California Labor Code §§ 1101-1102 reinforces the substantial public interest in protecting the “fundamental right” of employees to engage in political activity without interference or threat of retaliation from employers.⁵ It is important to note that California’s law against retaliation only prohibits actions by the employer that are politically motivated. Thus, Labor §§ 1101-1102 do not prohibit employers from taking adverse employment actions in response to an employee’s political activities if that response is based on a rational basis rather than the political beliefs of the employer and/or employee. California employees whose employers violate California Labor §§ 1101-1102 by punishing them for their political beliefs or activity may be able to sue the employer for wrongful termination and/or wrongful constructive termination after complying with administrative prerequisites.⁶ An employee may be entitled to lost wages and benefits, alleged pain and suffering as well as even punitive damages in the appropriate factual setting.⁷

Therefore, in California, employers should be careful in prohibiting political discussion and even more so dismissing an employee for voicing his or her political opinions, something which maybe attempted under the guise of creating harmony in the workplace or under Constitutional First Amendment arguments. However, employers are not without relevant tools to manage this complex matter. Employers should update their handbook, policies, procedures, and training as well as engage their human resources managers accordingly. Finally, of utmost importance, as situations such as these are truly fact specific, it is important to seek the advice of an experienced employment counsel.

[1] 2017 Work and Well-Being Survey: Special Focus on Politics, American Psychological Association, May 2017. http://www.apaexcellence.org/assets/general/2017-politics-workplace-survey-results.pdf?_ga=2.167172279.887043204.1496772883-1377947416.1495835394
[2]2017 Work and Well-Being Survey: Special Focus on Politics, American Psychological Association, May 2017, See Executive Summary.
[3] Labor Code §1101.
[4] Labor Code §1102
[5] Ali v. L.A. Focus Publication (2003) 112 Cal.App.4th 1477, 1487.
[6] See California Labor Code 2699.3, Labor Code §1101, Labor Code §1102.
[7] See California Labor Code §1105, CACI §2433, California Civil Code §§3294, 3943, 3947.