Wednesday, August 29, 2012

When Employees Engage in Political Activities

Recently, a federal judge in Virginia ruled that a litigant's action of clicking the "like" button on a Facebook page did not merit protection by the First Amendment of the United States Constitution.  The litigant, Daniel Carter, expressed his support for a candidate for sheriff.  However, the candidate was not his boss, the current sheriff, B.J. Roberts.  When Mr. Roberts discovered his employee's action, he told him to stick with him, not the opponent. 

After winning re-election, Mr. Roberts fired Mr. Carter and others.  Mr. Carter claimed that the termination was wrongful, and violated his free speech rights under the Constitution.  The court disagreed, concluding that the simple act of clicking a button did not merit 1st Amendment protection. 

I am amazed at this decision.  Of course Mr. Carter's actions were an act of speech.  It's not too much different than placing a sign in one's yard -- a simple act which conveys a message of support.  It's not unlike buttons worn for the 1956 presidential election -- I like Ike. 

What happens to an employer in California who takes action against an employee for expressing a political viewpoint?  Labor Code section 1101 prohibits an employer from preventing employees from participating in politics or from becoming a candidate for office.  Section 1102 prohibits an employer from threatening to fire an employee for adopting a particular political position. 

Moreover, it would be an unfair labor practice to take action against an employee for expressing affiliation with or taking action in favor of a union. 

I am also confident that many judges would consider clicking a "like" button on Facebook, or taking similar action on another social media site would constitute speech protected by the 1st Amendment. 

As the rhetoric heats up and the candidates demonstrate more rancor, employers can be sure that their employees will be emotionally engaged.  Employers can require employees to perform their work during work hours -- as opposed to engaging in political acts.  And of course, an employer can hold employees to standards of decency and civility in the workplace.  However, off the clock an employee is free to engage in protected political speech. 

"But what if the employee wears a political badge or displays a bumper sticker in the workplace?  Can I discipline him/her?"  I don't have enough facts to answer the question.  Sorry, you will have to call with specific questions.  This blog can only provide you with general guidance. 

Good luck and may the best candidates win!

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