Seyfarth Synopsis: Under California law, employers have a part to play in protecting employee voting rights and other political activity. What follows is a short reminder of employer duties and obligations.
With the June 7, 2016, primary right around the corner, California employers need to be prepared for election season. For your reference, here is a quick summary of some of the major issues California employers may face between now and Election Day.
Regardless of whether their employees are feeling the Bern or stumping for Trump, California employers must ensure that employees have an opportunity to visit the polls, which are open from 7:00 a.m. until 8:00 p.m. California Elections Code Section 14000 requires employers to provide employees who do not have sufficient time to vote outside of their regular working hours with up to two hours of paid time off to vote at the beginning or end of their regular shift, depending upon whichever will permit the most time for voting and the least amount of time off the job. Employers and employees also are permitted to work out a mutually agreeable schedule for Election Day that better suits their needs.
Employees cannot simply skip work to punch those ballots, however. Instead, employees who believe by the time of the third working day before Election Day that they will need to time off to exercise their civic duty must provide their employer with notice no later than two working days before Election Day. To ensure that employees are apprised of this right, California Elections Code Section 14001 very patriotically obligates employers to post a notice setting forth the provisions of Section 14000 in a conspicuous place ten days before Election Day. The notice can be found here.
Beyond pulling the lever in the voting booth, California employers must also allow employees to exercise their fundamental right to engage in political activity without interference. That means employers cannot restrict their employee’s political activities or affiliations, nor can they force employees to participate in any particular political activity. Cal. Lab. Code §§ 1101 and 1102. Employers need to keep in mind that political activity means more than just casting a vote. The meaning of “protected activity” is expansive and encompasses participation in organizations or movements advocating for political or social causes such as civil and equal rights. Gay Law Students Assn. v. Pac. Tel. & Tel. Co., 24 Cal. 3d 458, 488 (1979). Employers who interfere with an employee’s political activities should be aware that an employee may pursue a cause of action to recover damages sustained as a result of the employer’s interference. Lockheed Aircraft Corp. v. Superior Court, 28 Cal.2d 481 (1946).
Solicitation of Funds
Private employers also cannot force their employees to donate funds to campaigns. They may, however, solicit campaign donations from managers, officers, or executives with policymaking authority if they have political action committees. 2 U.S.C § 441(b)(3). However, even if they want to “make America great again,” employers cannot coerce employees to donate their personal funds for political purposes. What this means is, under both Federal and California law, employers cannot use threats of discharge, demotion, or any other financial reprisal to pressure employees to donate. 11 CFR § 114.2 (f)(2)(iv); see also Cal. Lab. Code § 1102; Fort v. Civil Service Comm’n of the County of Alameda, 61 Cal. 2d 331, 338 (1964). Accordingly, private employers soliciting funds must have a political action committee, seek funds only from policymakers, and ensure that contributions are entirely voluntary lest they Cruz (sic) into a potential lawsuit.