Politics, Freedom of Speech, and the Workplace (May 2016)
In a 2012 article humorously titled “Where Free Speech Goes to Die: The Workplace” Bloomberg writer Michael Dolgow correctly noted there is no First Amendment right to free speech in private employment scenario. Ask an employee that truthfully answered an HR survey about his manager’s performance and ethics, and found themselves on a performance improvement plan a month later. In this political season, I expect to get an increasing number of calls from xyz supporters.
The classic scenario is co-worker harassment that follows an enthusiastic employee advocating for or merely expressed support for this candidate, that candidate, or some political agenda. “Hey, I was just exercising my right to free speech!” No, you were painting a target on your back. Ask former Mozilla CEO Brendan Eich who resigned following disclosure and backlash for his support of Prop 8.
However, in California the employer’s conduct does come under some protective regulation. It is unlawful for an employer to force your allegiance or speech to conform to a political or social agenda, and it is unlawful for en employer to prevent you from engaging in political activities (on your own time) or retaliating against you because of your outside of work participation. California Labor Section 1101 & 1103 prohibit coercion, influence, controlling or retaliation in the area of employee’s political beliefs or activities. However, this is not the same as “free speech” in the workplace, so don’t bring your political advocacy to work.
Speaking of advocacy, some types of advocacy might be protected advocacy because its nature is closely related to an acknowledged protected class or protected activity, Advocating LBGT rights in the workplace might be a fair example, the EEOC & DFEH are willing to hear your complaint that you suffered management retaliation for expressing your views on what is a statutory protected civil rights matter in California.
Common sense, keep your political views to yourself in the workplace. The freedoms you enjoy as a citizen do not necessarily follow you into your employment relationship