Gagging Employees

Miss Manners may wisely advise us to follow the old adage not to talk about politics or religion, but can California employers prohibit their employees from discussing these and other lightening rod subjects?

Here’s how California law addresses the stifling of employee discussions:

Politics. An employer generally can’t regulate an employee’s political activities (Lab C §§1101-1102), but it can protect business operations or productivity by regulating on-the-job conduct or destructive or provocative political speech. This basically means that employees can talk politics as long as it doesn’t infringe on their own or their co-workers’ work.

Religion. Religious expression in the workplace can present problems for employers, especially when an employee’s religious beliefs about homosexuality conflict with the employer’s need to enforce nondiscrimination policies. Employers have to accommodate an employee’s religious beliefs, but they also have to consider how those beliefs, as expressed, impact other employees and the workplace generally. For example, in Peterson v Hewlett-Packard Co. (9th Cir 2004) 358 F3d 599, 607, the court held that accommodating an employee’s religious beliefs is not required when doing so would make the employer either exclude sexual orientation from its diversity program or permit the employee to post messages intended to demean and harass other employees.

Compensation and working conditions. An employer can’t prohibit employees from discussing compensation issues with co-employees. Lab C §232. As much as some employers may find that it interferes with business decisions related to hiring and promotion, employees are free to disclose the amount of their wages and can’t be prohibited from disclosing information about the employer’s working conditions. Lab C §232.5(a)-(b).

English only. Absent business necessity, the employer cannot require that workplace discussions take place in English. CC §§1798-1798.78; Lab C §1198.5.

Want to know more about workplace privacy laws? Check out CEB’s Privacy Compliance and Litigation in California, chap 8. On accommodating the religious beliefs of employees, see CEB’s Wrongful Employment Termination Practice: Discrimination, Harassment, and Retaliation, chap 1.

© The Regents of the University of California, 2012. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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