Employees have become increasingly vocal in expressing their political, cultural, and social views on- and off-duty. How can employers protect employee freedoms while maintaining a welcoming workplace, limiting discord and division, and preserving the organization’s values and reputation? These questions have been top-of-mind for employers, as employee self-expression has increased in volume and intensity with recent high-profile movements and events, including #MeToo, Black Lives Matter, and the violent storming of the U.S. Capitol on January 6. Meyers Nave attorneys Arlene Yang and David Mehretu provided a webinar to help private and public employers navigate this nuanced legal arena and its complex practical considerations. The Webinar Covers: First Amendment and employment law Special concerns of public employers, especially concerning public safety employees Social media policies Policies and litigation regarding workplace attire Collective bargaining and the National Labor Relations Act California laws prohibiting retaliation for engaging in political activity Intricacies of internal message boards and discussion groups Challenges regulating employee self-expression in the work from home environment

1. Employment Law and Freedom of Speech:
What Can Employers Do When
Employees Express Their Political,
Cultural, and Social Views?
March 16, 2021

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Arlene Yang
Principal
Labor and Employment Law
Workplace Investigations
ayang@meyersnave.com, 800.464.3559
David Mehretu
Of Counsel
Trial and Litigation
Labor and Employment Law
dmehretu@meyersnave.com, 800.464.3559
Presenters

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• Please note the information
in this presentation is subject
to change.
• This is an informative
presentation and not intended as
legal advice.
• Please consult with an attorney
for assistance with a particular
issue or problem.

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Poll Question #1
Have you had concerns about an employee’s expression
of political, cultural, or social views? (check all that apply)
a. Yes – on duty conduct
b. Yes – off duty conduct
c. No

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Framing the Problem
I can say
what I like!
It's a free
country!

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Poll Question #2
What employee expression issues keep you up at night?
(Check all that apply)
a. Off-duty conduct in conflict with
our organization’s mission and values
b. Complaining about co-workers’ on duty conduct
c. Complaining about co-workers’ off duty conduct
d. Something else (please include it in the chat)

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Overview
1. Applicable Laws
a. Constitutional framework
b. Federal and state laws
c. Union considerations
2. Employer policies and best practices
3. Real life examples
4. Questions

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Recurring Factors
1. Employment relationship
 Public or private employer
 Union or non union
2. On duty or off duty conduct
3. Policies and employee handbook
4. Constitution and legal restraints

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Constitutional Framework
U.S. Constitution – First Amendment
• Basic Principles
 Generally
Government may not prohibit or punish speech
 Exceptions
Obscenity, libel/slander, true threats, time, place and manner

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Constitutional Framework
Hate Speech protected under First Amendment
 Racist speech by Ku Klux Klan members
 Nazi march
 Burning of a cross at a political rally
X But not “True Threats”

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Constitutional Framework
Speech by Public Employees
General Rule
− Public employees
do not lose their
right to free speech
 Government can control
speech directed at its
employees more than toward
the general public
 Legitimate interest of
government employer vs.
employee’s speech
However

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Constitutional Framework
Five Part Test
Employee’s Prima Facie Case
1. Is speech of public concern?
2. Spoken in capacity of private citizen
or part of job duties?
3. Substantial cause of adverse employment action

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Constitutional Framework
Five Part Test
Burden shifts to public employer:
4. Pickering balancing – state's legitimate administrative interests outweigh
employee's First Amendment rights
or
5. Adverse employment action would have occurred
regardless of the speech

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Constitutional Framework
Matter of Public Concern
• Political, social, or other concern
to the community
Police officers’ pornographic videos
Assistant DA’s questionnaire complaining of grievance procedure
Fire department paramedic's Facebook post about killing liberals
Officer’s Facebook posts showing President Obama being hung

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Constitutional Framework
Speech as private citizen vs. Pursuant to official duties
• First amendment protects speech
– when the public employer is
speaking as a private citizen
• Protection does not apply
– when employee is speaking pursuant
to their official duties

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Constitutional Framework
Speech as private citizen vs. Pursuant to Official Duties - Examples
Teacher’s class decorative banners about religion
Coach kneels, prays on 50-yard line immediately after
games in logoed-attire in view of students and parents
Officer’s Facebook post saying it was a shame suspect didn’t have any
holes in him

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Constitutional Framework
Pickering Balancing Test
• Do public employer’s administrative
interests outweigh employee’s speech?
• Standards
 “Reasonable prediction of disruption”
 Sliding scale – more significant the speech, the higher the government’s
bar

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Constitutional Framework
Balancing Test: 8 Factors
1. Nature of employer and role of employee
2. Extent of authority and public accountability the employee's role entails
3. Impairment of discipline by superiors
4. Impairment of harmony among co-workers
5. Detrimental impact on close working relationships for which
personal loyalty and confidence are necessary
6. Impedes the performance of the speaker's duties
7. Interferes with the regular operation of the enterprise
8. Police departments have a heightened interests in
“discipline esprit de corps, and uniformity”

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Constitutional Framework
Fire paramedic's racist Facebook posts
FREE
SPEECH
FREE
SPEECH
Balancing Test: Examples
Clerical employee who said she wished Reagan would be assassinated
Facebook post by SWAT officer commenting it was a “shame” a suspect
who was arrested after ambushing police didn’t have any holes in him

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Constitutional Framework
Prior Restraints on Speech
Issue: Policies, rules, and regulations may violate Constitution
• The same Pickering balancing approach applies
• Government’s burden is even higher because the interests of all potential
speakers and their audiences must be balanced with the need for the
restriction

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Constitutional Framework
Prior Restraints on Speech – Examples
Failed test: Police policy prohibiting the dissemination of any
information on social media “that would tend to discredit or reflect
unfavorably upon the Department.”
Passed test: Similar policy. However, also provided “[p]ersonal social
media activity must not interfere with work duties or the operation of
the Department.”

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Constitutional Framework
California Constitution
• Generally does not provide greater protections to employee speech than
under the U.S. Constitution

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Constitutional Framework
Private Employers
In the employment context generally, the
free speech protections under the U.S.
Constitution and the California Constitution
do not apply to private employers

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State Law Protections
At will employment
• Labor Code § 2922
• Termination for any reason,
or no reason, as long as not
prohibited by law
• Private employers

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State Law
Generally: Employees have no right to engage
in political activity during working hours.
Additional rules for public employees:
 Political activity during working hours.
Gov’t Code § 3207
 Appearing in uniform for political
activities. Gov’t Code § 3206

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State Law Protections
Labor Code § 1101
• No rule, regulation, or
policy (a) preventing
participation in politics or
from becoming public
office candidate, or (b)
controlling the political
activities or affiliations of
employees
Labor Code § 1102
• Cannot coerce through
threat of discharge to
follow any particular
course or line of political
action or political activity

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State Law Protections
Public Employees
• Gov’t Code § 3203: “no restriction shall be placed on the political
activities of any officer or employee of a state or local agency,” except as
necessary for federal law or statutory exceptions (e.g. rules re: uniforms,
on-duty activity)
• Public school personnel: Education Code § 7050-7058
• Federal employees: Federal Civil Service Reform Act of 1978 - political
affiliation

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What is Political Activity?
• Not narrowly confined
to partisan activity
• Espousal of a cause
and action to promote
acceptance by others

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Political Activity – Labor Code §§ 1101(a), 1102
Off-duty conduct
Journalist fired after he spoke on radio show opposing candidate
for public office and criticizing a member of Congress. Violation.
Ali v. L.A. Focus Publication, 112 Cal. App. 4th 1477 (2003)
Private employment
Full-time financial advisor fired after elected county supervisor.
Supervisor role required 25 business hours/week, so not available
to work when required. No violation.
Couch v. Morgan Stanley & Co. Inc., 656 Fed. Appx. 841, 843 (9th Cir. 2016)

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Political Activity
• Hate speech, unlikely to be protected political activity
• Joining board of pro-choice organization when employer is pro-life?
• Black Lives Matter mask. Armbands
• Can the employer tell employees they will be fired if they attend
a rally for Proud Boys?

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State Law Protections of Employees’ Political Activity
Labor Code §§ 96(k), 98.6
No discrimination or retaliation for “lawful conduct occurring during non-working
hours away from the employer’s premises”
 Public and private employers
 “lawful” limited to constitutional or Labor Code.
Grinzi v. San Diego Hospice Corp. (2004) 120 Cal. App. 4th 72

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State Law Protections of Employees’ Political Activity
Reminder: Many types of speech and expression are protected
• Fair Employment and Housing Act – reporting discrimination, requesting
reasonable accommodation, whistleblowing
• Cal. Equal Pay Act – discussing wages
• CROWN ACT – natural hairstyles, i.e., Black hairstyles, braids, locks
• Whistleblowing – health and safety, violation of law, Labor Code § 1102.5,
qui tam, Sarbanes-Oxley
• National Labor Relations Act – if related to work conditions or concerted
activity

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State Law Protections
Violence or Threats of Violence
• Ralph Civil Rights Act of 1976 – Civil Code § 51.7
• Tom Bane Civil Rights Act – Civil Code § 52.1
• No need for discriminatory animus or intent
“Any individual whose exercise or enjoyment of rights secured by the
Constitution or laws of the United States, or of rights secured by the
Constitution or laws of this state, has been interfered with, or attempted
to be interfered with . . .”

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State Law Protections of Employees’ Political Activity
Can we terminate an employee
who was arrested at a protest?
 Policy prohibiting absence from
work without providing notice?
 Labor Code § 432.7 prohibits
discipline or termination based on
arrest record or police report
alone. Public and private
employers.
 Employer investigation
 Collective bargaining agreement?

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Policies
Social Media Policies
 Make clear:
 If off-duty conduct has direct
impact on the company’s
reputation or financial well-being
 Then discipline up to and including
termination may result
 Incorporate anti-harassment/discrimination policy

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Policies
Social Media policies – consider:
 First Amendment rights and privacy rights
 Union activities under Meyers-Milias-Brown Act and NLRA
 Labor Code § 980(b): cannot require or request disclosure of username or
password to personal social media, or make employee access in presence of
employer. Incl. text messages, email, blogs
− Permitted if investigation of employee misconduct or violation of law or
regulations
− Public sector and private sector

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Policies
Dress Codes
 May prohibit symbols, slogans, and
messaging visible to customers – shirts,
masks, tattoos
 Non-discriminatory, especially
considering gender, race, etc.

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Policies
Other non-discriminatory, but
enforceable policies:
• Office decor
• Technology usage policies (no
expectation of privacy)
• Anti-harassment/discrimination
policies

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Example #1: Police Officer Expressing Far Right Views
A police officer parks his personal vehicle in a city parking lot. The vehicle has
decals for the Three Percenters, a far-right militia group, thin blue line
American flags, a Trump sticker, one mocking the LGBTQ community, and
“Molon Labe.”
Six months later, the same police officer posted messages on a
social media platform including “F*** Black Lives Matter” and to
free Kyle Rittenhouse, who shot and killed two protesters in
Wisconsin following the police shooting of Jacob Blake.

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Example #1: Police Officer Expressing Far Right Views
• Matter of public concern?
• Private speech?
• Pickering balancing
• Policy?
• Policy consistently applied?
• Investigation
• Risk management- discipline vs. no action
• Collective bargaining agreement

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Example #2: Obscene Social Media Post

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• Identify evidence of disruption
• Written Policies – social media, dress
code, etc.
• Prompt investigation
• Document, document, document
• Collective bargaining
• Consult legal counsel!
Takeaway Advice

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Social Media, First Amendment and Government:
What Are the New Rules of Engagement?
Registration Link: https://www.sdcba.org/?pg=semwebcatalog&panel=showLive&seminarid=13715
March 24 Webinar