In this time of political turbulence, many people wonder if they can be fired for their political beliefs or activities. In California, the answer to that question is no, thanks to the provisions of California Labor Code sections 1101 and 1102.
Section 1101, which has been on the books since 1937, provides as follows:
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.
Note that section 1101 is broad, and includes rules, regulations or policies that tend to control or direct the political activities or affiliations of employees. This would include terminating an employee for his or her beliefs, because doing so would tend to control his or her activities or affiliations.
Section 1102, also enacted in 1937, provides as follows:
No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.
The California Supreme Court has interpreted these laws favorably for employees in a pair of cases. First, in Lockheed Aircraft Corp. v. Superior Court of Los Angeles County (1946) 28 Cal.2d 481, a group of employees had sued claiming that Lockheed fired them because of their political activities. In response, Lockheed raised a series of challenges to section 1101.
The Court rejected each of Lockheed’s challenges. The Court held first that section 1101 is not so uncertain or ambiguous as to be unconstitutional. The Court further held that section 1101 was not an arbitrary or unreasonable limitation on the right to contract.
Perhaps most importantly, the Court recognized that an employee who suffers a violation of section 1101 can bring a private right of action for damages resulting from a breach of his or her employment contract. In reaching this holding, the Court noted that Labor Code section 1105 provides that “Nothing in this chapter shall prevent the injured employee from recovering damages from his employer for injury suffered through a violation of this chapter.”
The Court then reasoned that, “a contract of employment must be held to have been made in the light of, and to have incorporated, the provisions of existing law. Hence, upon violation of the section, an employee has a right of action for damages for breach of his employment contract.” Lockheed Aircraft Corp., 28 Cal.2d at 486. (citations omitted)
Three decades later, the Court revisited sections 1101 and 1102 in Gay Law Students Assn. v. Pacific Tel. & Tel. Co. (1979) 24 Cal.3d 458. In that case, a group of students claimed that the defendant was discriminating against gays and lesbians by refusing to hire them, and that such conduct violated sections 1101 and 1102.[1]
The Court held that sections 1101 and 1102 “serve to protect ‘the fundamental right of employees in general to engage in political activity without interference by employers.’” 24 Cal.3d at 487. For this reason, the statutes should not be narrowly confined to partisan activity. Furthermore, “[t]he term ‘political activity’ connotes the espousal of a candidate or a cause, and some degree of action to promote the acceptance thereof by other persons.” (emphasis in original)
The Court then reiterated its holding in Lockheed that employees who are fired in violation of sections 1101 and 1102 can bring claims for damages.
If you are fired for your political beliefs or activities in California, you may be able to bring several different types of claims. First, you can sue under sections 1101 and 1102 directly. You may also be able to sue for wrongful termination in violation of public policy. See, e.g., Stevenson v. Superior Court (1997) 16 Cal.4th 880, 889–890. Third, you may be able to sue for breach of the covenant of good faith and fair dealing. See, e.g., Comunale v. Traders & General Ins. Co. (1958) 50 Cal.2d 654, 658.
It is not clear whether an employee who prevails under section 1101 or 1102 will be entitled to his or her attorneys’ fees. Therefore, you may also wish to explore bringing a claim under the Private Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.), which provides for reasonable attorneys’ fees and costs. See Cal. Lab. Code section 2699(g)(1).
If you have questions about your rights in the workplace, please feel free to contact Hunter Pyle Law for a free and confidential initial intake. We can be reached by phone or by text at (510) 444-4400 or at inquire@hunterpylelaw.com.
[1] At that time, sexual orientation was not a protected category under the Fair Employment and Housing Act. It is now. See Cal. Govt. Code section 12940(a)(1).