• Can I Fire the Trump Supporter Who Reports to Me?
  • June 6, 2017 | Author: Rodney B. Sorensen
  • Law Firm: Payne & Fears LLP - San Francisco Office
  • Donald Trump’s presidency may have passed the 100-day mark, but controversies surrounding the nation’s 45 th president haven’t let up. The political climate of the nation remains divided, and appears — improbable as it may seem — more polarized every day, even in places we may not expect such division.

    Many of us cannot avoid, or do not want to avoid, sharing our political opinions at work. This, not surprisingly, can cause problems. Despite its assumed liberal leanings, the technology industry in Silicon Valley is far from immune from political divide.

    Assume you manage a team of employees who are politically active and talk about politics at work. Discussions involve Trump’s latest early-morning tweet about the size of the crowd at his inauguration, Trump’s accusations of wiretapping by President Obama, tomahawk missiles launched against Syria in response to chemical weapons attacks, posturing regarding North Korea, the ongoing effort to repeal the Affordable Care Act, Trump’s firing of FBI Director James Comey, and reports that Trump erred in sharing sensitive information with Russian officials.

    You have no problem with the conversations, and sometimes even participate in them.

    During the tumultuous 2016 election season, your employees — along with what you perceived to be the rest of Silicon Valley — were largely skeptical of candidate Trump. With his election, the mood at work shifted to one of deep concern about what this would mean for the technology industry, the economy more generally, and the nation as a whole. While some industry leaders, perhaps most notably billionaire investor Peter Thiel (of PayPal, Facebook, and numerous other start-up fame), voiced support for the newly-elected President, your employees initially appeared unified in their disappointment and apprehension.

    But as time passed, technology leaders appeared willing to work with the President-Elect, or at the very least willing to hear what he has to say. Indeed, Thiel and other influential leaders attended a technology summit with the President-Elect at Trump Tower in New York City. Google, accordingly to news reports, even posted a job listing for “Director of Conservative Outreach” in an apparent effort to improve future relations with the incoming administration.

    In this climate, one of your employees begins to voice her support for President Trump. She approves of his agenda and everything he has done so far, and has started to routinely refer to news reports as “fake news.” She is vocal about agreeing with Thiel, saying he’s got it right, and says the Trump Administration is going to be great for the industry and country.

    This Trump-supporting employee goes further, expressing concern that the company and the political opinions espoused by executives do not reflect her position, and that the company is unwilling to allow diverse political thoughts in the workplace. She complains loudly to her co-workers that she was looking forward to attending conservative commentator Ann Coulter’s speech at UC Berkeley, “until the liberals over there decided they don’t believe in freedom of speech and cancelled it.”

    This complicates things. It causes friction where previously there had been a feeling of unity. It creates a divided workforce. It would be so much easier to continue leading a happy and productive team if only you could be rid of that one employee, along with the new “Make America Great Again” bumper sticker on her car. So you wonder, “can I fire her?”

    If Trump can fire the director of the FBI in the middle of the FBI’s investigation into potential connections between Russia and Trump’s campaign, I am able to fire this employee who is causing me such a headache, right?

    In California, the answer is clear — the law expressly prohibits employers from forbidding an employee from participating in politics, or controlling or directing an employee’s political activities or affiliations. Employers are also barred from firing or threatening to fire an employee in order to coerce him or her into any particular course of political activity. (California Labor Code Sections 1101 & 1102.)

    These provisions encompass and protect more than simply supporting a particular candidate or party. The California Supreme Court has decided the term “political activities” includes all activities that may indicate support for a particular candidate or a political cause. This broad definition of “political activities” protects California employees from discrimination based not only on which candidate the employee supports, but also on support for or involvement in the many social and political movements of today’s political landscape.

    Employees may not be fired or otherwise disciplined for participating in a climate march or attending an Ann Coulter speech; nor for going to a “Black Lives Matter” protest or supporting a border wall between the United States and Mexico; nor for countless opinions and activities in between.

    In light of these protections, as a manager, you need to be careful. Whether you agree or disagree with the particular political cause or point of view of one of your employees, the most prudent course as a manager is to avoid opposing another employee’s political view in the workplace, as your opinion could potentially be used as fodder for a lawsuit in the event you need to discipline or terminate an employee with differing views in the future. The employee could later claim that your opposition to her political views was the motivating factor behind the decision to terminate her, even if you fired her for poor performance.

    In short, unless you want to Feel the Bern of a wrongful termination lawsuit, it wouldn’t be prudent at this juncture to express strong political views in the workplace as a manager.