May California Employers Avoid Politically Controversial Employees?

I've argued before that a university may reasonably — and without violating the First Amendment or academic freedom principles — (1) prefer to hire a Dean or a Chancellor who isn't too politically controversial, and (2) insist that these employees (who do a lot of fundraising and are the public face of the university) avoid controversial statements during their employment.

But even if I'm right, it's possible that a California state statute nonetheless prohibits this. In fact, if the statute is read according to its text, coupled with the way the California Supreme Court has interpreted it, then all California employers must retain employees despite their controversial off-the-job statements, even when those statements are incendiary and alienate the employer's customers, donors, employees, or others.

Here's the relevant statute, California Labor Code § 1101:

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

(a) Forbidding or preventing employees 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.

Now you might think the statute applies only to politics in the sense of election campaigns; but the California Supreme Court has held otherwise, see Gay Law Students Assn. v. Pacific Tel. & Tel. Co., 595 P.2d 592, 610 (Cal. 1979), and read the term as basically applying to commentary on a wide range of public affairs. You might also think it applies only to current employees, and not hiring decisions; not so, the Supreme Court held (id. at 610 n.16). So it seems that an employer's policy (written or not) that it won't hire or won't retain employees who make public statements that alienate members of the public — or more specific policies applying to, say, racist statements, religiously bigoted statements, sexist statements, and the like — would be illegal.

Employers would thus not only be barred from firing employees because they are Democrats or Republicans. They would also be barred from refusing to hire Klansmen or people who have made racist, anti-Semitic, or anti-Catholic statements, even when the candidate is being hired for a high-profile public contact or leadership position, and when many of the employer's customers would be deeply alienated by the person's statements (past or future).

Now it would make sense to come up with an exception for "when the employee's political activities are patently in conflict with the employer's interests," and one federal trial court case so held, see Smedley v. Capps, Staples, Ward, Hastings & Dodson, 820 F. Supp. 1227, 1230 n.3 (N.D. Cal. 1993). But there's no authority in the statutory text for any such position, and the case Smedley cited in support, Mitchell v. International Ass'n of Machinists, 196 Cal. App. 2d 796 (1961), actually doesn't support that position.

State statutes in some other states do have exceptions for when the speech restriction on employees "[r]elates to a bona fide occupational requirement" (Colorado) or when the employee's speech "creates a material conflict of interest related to the employer's trade secrets, proprietary information or other proprietary or business interest" (New York). But California doesn't; and it's not clear that California courts would be willing to infer such an exception -- compare Davis v. Louisiana Computing Corp., 394 So.2d 678, 679 (La. App. 1981), which specifically refused to infer such an exception into a similar Louisiana statute.

It's possible that some employers' First Amendment rights might trump this statute in some situations, for instance when a newspaper demands that its reporters not engage in politics. Compare Nelson v. McClatchy Newspapers, Inc., 936 P.2d 1123, 1127 (Wash. 1997) (so holding, by a 5-4 vote) with Ali v. L.A. Focus Publication, 112 Cal. App. 4th 1477 (2003) (rejecting the claim that a newspaper "has the unfettered right to terminate an employee for any [outside-the-newspaper] speech or conduct that is inconsistent with the newspaper's editorial policies"). But many employers wouldn't have such claims; and in particular, I'm pretty sure (notwithstanding occasional references to the supposed First Amendment rights of public universities) that the University of California, a branch of the California government, would have any First Amendment rights to resist the judgment of its ultimate bosses in the California legislature. (Article 9, section 9 of the California Constitution does give the University some independence from state statutes, but not from generally applicable state laws such as this one.)

In any case, I'm pretty sure that Chemerinsky won't sue UC on this theory or any other, so the answer might never be squarely determined. But I thought I'd raise this issue, chiefly because it illustrates an interesting and difficult problem faced by California employers who care about public reaction to their leaders', spokespeople's, and fundraisers' speech.