Employers Dealing with Employees Wearing Political Message Clothing

California’s Labor Code provides several statutory provisions directed at the regulation of political activities in the workplace. These provisions are found in Division 2 [Employment Regulation and Supervision], Part 3 [Privileges and Immunities], Chapter 5 [Political Affiliations], Sections 1101 – 1106. Chapter 5 was originally enacted in 1937.

Section 1101 prohibits employers in this state from adopting or enforcing any rule or policy that (a) forbids or prevents employees from engaging or participating in politics or from becoming candidates for public office, or (b) controls or directs the political activities or affiliations of its employees. Section 1102 prohibits employers from coercing or influencing employees through threatening to discharge any employee from engaging in political activity.

Section 1103 provides that an employer or any person that violates either of these provisions is guilty of a misdemeanor and individuals who are guilty can be imprisoned in county jail for up to one year and be fined up to $1,000, or both. In the case of a corporation, the entity can be fined up to $5,000 for violating either of these sections.

Section 1104 specifies that an employer is responsible for the acts of the employer’s managers, officers, agents, and employees. Section 1105 states that the law does not prevent an injured employee from recovering damages from his or her employer for injury suffered due a violation of these code sections. As a result, an aggrieved employee has a private right of action to enforce these statutory provisions.

As a general rule, employees of private companies do not have First Amendment rights regarding political speech. For employees of public sector entities, a balancing test is used and factors a public employer’s rights of maintaining the workplace against an employee’s rights of political expression.