The Volokh Conspiracy - "No Political Candidacy" Clauses for Actors?

Michael Froomkin (discourse.net) points to an L.A. Times story about how "about how Law & Order reruns might have to be pulled if Fred Thompson runs for President," and asks:

If stations are so afraid of having to give equal time for other candidates that they’d rather pull the episodes, then surely it would be economically rational for the studios to put a routine “no running for office” clause in actors’ contracts that would apply so long as the reruns are showing?

My question is whether that term would be enforceable: would it be against public policy? Or maybe fall to the same sort of doctrines that disfavor non-compete clauses that last more than a few months to (at most) a couple of years?

Well, California is one of about ten states that expressly or implicitly protect private employees from discharge for certain kinds of political activities. Cal. Labor Code § 1101 provides:

No employer shall make, adopt, or enforce any rule, regulation, or policy:

(a) Forbidding or preventing employees [or applicants for employment, according to a California Supreme Court decision] from engaging or participating in politics or from becoming candidates for public office.

(b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees [or applicants for employment].

The statute is written categorically, with no exceptions. One federal district court decision, Smedley v. Capps, Staples, Ward, Hastings & Dodson, 820 F. Supp. 1227, 1230 n.3 (N.D. Cal. 1993), stated that there might be an exception "when the employee's political activities are patently in conflict with the employer’s interests"; but I don't think that's a correct interpretation of the statutory text, or of Mitchell v. International Ass’n of Machinists, 196 Cal. App. 2d 796 (1961), the case that Smedley cited as precedent for its assertion.

So it sounds like such "no political candidacy" rules would likely violate the California statute, and would thus be illegal when it comes to employees working in California. Do they apply to actors who are ostensibly hired as independent contractors? I don't know the answer to that, though I suspect that simply labeling workers "independent contractors" wouldn't suffice to exempt them from coverage.

What if Law & Order employees are governed by New York law? New York is one of the other states with such a statute, N.Y. Labor Law § 201-d; this reads, in relevant part:

(1) (a) “Political activities” shall mean (i) running for public office, (ii) campaigning for a candidate for public office, or (iii) participating in fund-raising activities for the benefit of a candidate, political party or political advocacy group ....

(2)(a) ... [No employer may discriminate against an employee or prospective employee] because of ... an individual’s [legal] political activities outside of working hours, off of the employer’s premises and without use of the employer’s equipment or other property [except when the employee is a professional journalist, or a government employee who is partly funded with federal money and thus covered by federal statutory bans on politicking by government employees] ...

(3) [This section] ... shall not be deemed to protect activity which ... creates a material conflict of interest related to the employer’s trade secrets, proprietary information or other proprietary or business interest [such as when the German National Tourist Office fired an employee for becoming known as the translator of some Holocaust revisionist articles -EV]....

A rule that bars employers from engaging in politics would likely be treated as presumptively impermissible discrimination based on their legal political activities. But that presumption would likely be rebutted in a situation such as the one Prof. Froomkin describes, because political activities that seem to legally mandate that an employee's work product no longer be salable would likely qualify as involving "a material conflict of interested related to the employer's ... business interest."

If anyone knows more about this issue, please post about it in the comments.

	[Eugene Volokh, May 4, 2007 at 4:27pm] Trackbacks "No Political Candidacy" Clauses for Actors? Michael Froomkin (discourse.net) points to an L.A. Times story about how "about how Law & Order reruns might have to be pulled if Fred Thompson runs for President," and asks: If stations are so afraid of having to give equal time for other candidates that they’d rather pull the episodes, then surely it would be economically rational for the studios to put a routine “no running for office” clause in actors’ contracts that would apply so long as the reruns are showing? My question is whether that term would be enforceable: would it be against public policy? Or maybe fall to the same sort of doctrines that disfavor non-compete clauses that last more than a few months to (at most) a couple of years? Well, California is one of about ten states that expressly or implicitly protect private employees from discharge for certain kinds of political activities. Cal. Labor Code § 1101 provides: No employer shall make, adopt, or enforce any rule, regulation, or policy: (a) Forbidding or preventing employees [or applicants for employment, according to a California Supreme Court decision] from engaging or participating in politics or from becoming candidates for public office. (b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees [or applicants for employment]. The statute is written categorically, with no exceptions. One federal district court decision, Smedley v. Capps, Staples, Ward, Hastings & Dodson, 820 F. Supp. 1227, 1230 n.3 (N.D. Cal. 1993), stated that there might be an exception "when the employee's political activities are patently in conflict with the employer’s interests"; but I don't think that's a correct interpretation of the statutory text, or of Mitchell v. International Ass’n of Machinists, 196 Cal. App. 2d 796 (1961), the case that Smedley cited as precedent for its assertion. So it sounds like such "no political candidacy" rules would likely violate the California statute, and would thus be illegal when it comes to employees working in California. Do they apply to actors who are ostensibly hired as independent contractors? I don't know the answer to that, though I suspect that simply labeling workers "independent contractors" wouldn't suffice to exempt them from coverage. What if Law & Order employees are governed by New York law? New York is one of the other states with such a statute, N.Y. Labor Law § 201-d; this reads, in relevant part: (1) (a) “Political activities” shall mean (i) running for public office, (ii) campaigning for a candidate for public office, or (iii) participating in fund-raising activities for the benefit of a candidate, political party or political advocacy group .... (2)(a) ... [No employer may discriminate against an employee or prospective employee] because of ... an individual’s [legal] political activities outside of working hours, off of the employer’s premises and without use of the employer’s equipment or other property [except when the employee is a professional journalist, or a government employee who is partly funded with federal money and thus covered by federal statutory bans on politicking by government employees] ... (3) [This section] ... shall not be deemed to protect activity which ... creates a material conflict of interest related to the employer’s trade secrets, proprietary information or other proprietary or business interest [such as when the German National Tourist Office fired an employee for becoming known as the translator of some Holocaust revisionist articles -EV].... A rule that bars employers from engaging in politics would likely be treated as presumptively impermissible discrimination based on their legal political activities. But that presumption would likely be rebutted in a situation such as the one Prof. Froomkin describes, because political activities that seem to legally mandate that an employee's work product no longer be salable would likely qualify as involving "a material conflict of interested related to the employer's ... business interest." If anyone knows more about this issue, please post about it in the comments.