What a great time of year for the people of the great state of Utah! Warm fall weather is extending the mountain biking season, and the ski season is just on the horizon. Oh, and I guess there is an election coming up on Tuesday, November 8th. If you are like me, your clear choice might change day to day based on new corruption allegations released by WikiLeaks and other media outlets. I will not disclose who I am voting for in this news alert, but if I did, what could my employer do about it? It could go something like this —
Me: I am voting for Trump! Employer: You’re fired.
Me: I’m voting for Evan McMullin. Employer: Is that the Mormon Mafia guy? You’re fired.
Me: I can’t stand Hillary Clinton, I’m voting for Libertarian Gary Johnson. Employer: You’re not fired, but you’re demoted and suspended without pay for a week.
Is it lawful for Utah employers to terminate or demote employees based on the expression of political beliefs or opinions? Can employers take adverse action against employees for voting for a particular party or candidate? Under the Utah Antidiscrimination Act of 1965, found at Utah Code Annotated, Title 34A Chapter 5, and in particular Section 112, employees have the right to express political convictions outside the workplace without fear of retaliation from employers. More specifically,
“[A]n employer may not discharge, demote, terminate, or refuse to hire any person, or retaliate against, harass, or discriminate in matters of compensation or in terms, privileges, and conditions of employment against any person otherwise qualified, for lawful expression or expressive activity outside of the workplace regarding the person’s . . . political convictions . . . unless the expression or expressive activity is in direct conflict with the essential business-related interests of the employer.”
Id. While Section 112 only prohibits employers from taking action against employees for expressing political views outside of the workplace, employers should be cautious in reacting adversely to political expressions that the employer believes occurred inside the workplace. The line between political expressions inside and outside the workplace is not clearly defined in the statute. What if a group of employees are at lunch with co-employees during the workday and engage in political discussions contrary to the employer’s preference? Is that protected political speech “outside of the workplace”? Or, what if while an employee is on break, she posts a political piece on Facebook or Twitter. Did the expression occur inside the workplace or was it protected political speech occurring outside the workplace? There are certainly clear examples of political expression inside the workplace that employers could be justified in imposing discipline, i.e., political expressive t-shirts or signage at work, or, active campaigning for a candidate during working hours. Employees might claim First Amendment free speech rights, but the First Amendment only applies to public employers.
One thing is clear under Utah law, however: employers are required to “allow any voter to be absent from service or employment on Election Day for not more than two hours between the time the polls open and close.” Utah Code Ann. § 20A-3-103 (Employee’s Right to Time Off For Election). Employees are required to apply for leave before the election day, and the employer may specify the hours the employee may be absent. Wages may not be deducted as a result of the absence. This statute does not apply if the employee has three or more hours between the time polls open and close during which the employee is not scheduled to be on the job. Employers found in violation of this statute are guilty of a class B misdemeanor.
In sum, employers should act cautiously when taking adverse action against employees for political beliefs both inside and outside the workplace. And, even if employers do not agree with employees’ political views, employers must comply with Utah law and allow employees time to vote consistent with the employee voting rights statute. Clyde Snow’s employment team is not available for political consultation, but we are well equipped to navigate any workplace legal problems that may arise this political season. Happy voting this election year!