Political Terminations

November 3, 2020, | Employment

This article is written by Catherine M. Corfee Esq. of Corfee Stone Law Corporation, which focuses on employment law including advice and litigation. We address lay offs and terminations with caution to employers to not base it on one’s outside political activities and/or speech in the workplace. 

In California, with the Covid Pandemic and the strict government orders to close your businesses or partially close them, many employers are suffering financially. Re-organizing your business is becoming more common than not. This may mean terminating employees. Yes, it is true that you may lawfully terminate employees for economic reasons without the threat of a lawsuit. The test is whether your selection of who to lay off or terminate is lawful and not based on one’s political affiliation and/or retaliation from such. There are other tests, as well such as not terminating one for age, gender, race, disability and other protected activities which is not discussed herein. 

In today’s climate, the discussion of politics is more common that before. Many employees are discussing politics at work. An employer cannot suppress that discussion, however, the employer can regulate the discussion times to break times, and during lunch. This is also true of those who are bi-lingual. An employer may restrict employees from talking in their language to non-work times. 

California’s laws against employer political activity retaliation includes California Labor Code 1101 and 1102 LC, which prohibit employers from:

1. setting any policy that prevents employees from engaging in political activity or running for political office, or that tries to control or direct employees’ political activity,

2. attempting to control employees’ political activities by threatening to engage in political activity retaliation, or

3. retaliating in any way (including through wrongful termination) against an employee for his/her political beliefs or activities

California employees whose employers violate Labor Code 1101 and/or 1102 by punishing them for their political beliefs or activity may be able to sue their employers for violation of public policy and/or wrongful constructive termination. 

Employers are normally bound to the acts and statements of their managers, and/or officers. This is called vicarious liability, with some exceptions. An employee can sue the employer and co-worker for harassment based on the employee’s political affiliation. It is not that difficult for an employee to prove political discrimination and/or harassment where an officer, and/or manager continually send political emails, even if funny. Remember, the “e” in email stands for evidence. There should be no teasing of an employee because of his or her political affiliation. A manager and/or officer’s posting of a political humorous joke and/or consistent whining about a political candidate amongst workers could lead to lawsuit exposure.  

Of significance, there can be no retaliation for an employee’s political activities outside of work, including posting on Facebook or social media. For example, an employer may not terminate an employee for appearing on a radio show to support political candidate in a local election and to criticize Member of Congress for supporting the candidate’s opponent.

Be cautious regarding the reason why you select employees to terminate and/or lay off. Do not be afraid to express concerns of financial hardships as a forewarning, or to provide a forewarning. State the real reason for the termination and/or do not just randomly terminate employees. The recent risks of wrongful terminations include terminating for political affiliation and/or age, even when the real reason is economics. Employers should compare the employees they have chosen not to terminate with the ones they desire to terminate to analyze potential litigation risks. .

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