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Social Media in California

Social Media in Discovery

For information about Social Media in Discovery in the United States, and other issues related to Social Media, read here.

Social Media Messages Protection

What social media messages are protected and what’s not?

Social Media Messages Protection in California Law

By Thomas Lenz. He is a partner in Atkinson, Andelson, Loya, Ruud & Romo’s Cerritos office, represents employers and heads the firm’s NLRB practice.(2012)

California provides several potential sources of protection for political activity, whether inside or outside the workplace. The state constitution provides broad free speech rights: “Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right.” (Cal. Const. Art. 1, § 2 (a).)

Further protection of off-duty conduct comes from California’s Labor Code, which prohibits termination or employment discrimination based on “lawful conduct occurring during non-working hours away from the employer’s premises.” (Cal. Labor Code § 96 (k).) In other words, employers cannot punish an employee for lawful activity away from work.

Additionally, Labor Code sections 1101 and 1102 protect employees from retaliation based on their political activities. Section 1101 prohibits employers from making, adopting, or enforcing any rule, regulation, or policy “forbidding or preventing employees from engaging or participating in politics, or from becoming candidates for public office,” and bars them from “controlling or directing the political activities or affiliations of employees.” (Cal. Labor Code § 1101 (a)-(b).)

Section 1102 bans employers from coercing, influencing, or attempting to coerce or influence workers “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 term “political activity” has a broad interpretation. (See Gay Law Students Ass’n v. Pacific Tel. & Tel. Co., 24 Cal. 3d 458 (1979).)

Often protesters criticize elected officials and government policies, calling for jobs, better working conditions, and health benefits. Even if such messages do not directly target the protester’s own workplace, the activity may still enjoy the protection of California law against retaliation.

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1 thought on “Social Media”

  1. Joyce

    My comment comes in the form of a question. Can employees use work place computers and email during their work hours to run/engage themselves in political campaigns and activities? I am curious because I know an employee that works at a law firm and holds the position of Law Clerk. She supported a local political candidate and was active in campaigning events. She used her work place computer and email during her working hours to directly engage herself in coordinating events for the campaign. She went as far as sending out a threatening email of blackmail to an opposing candidate. Does California have laws that protect either one or both public and private sector employees? I feel I should report this employee to her firm..considering all the employee’s emails are readily available for their review.

    Reply

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