From now until the polls close on Tuesday, November 8, 2016, politics will be inescapably in the air – and in the workplace. Employees will be talking, and sometimes arguing, and sometimes participating in one campaign or another. Prudent employers should take note of what they may be required to do or prohibited from doing about their employees' desire to participate in the electoral process.
The Workplace Is Not a "Free Country"
Let's start with the basics: the First Amendment does not apply to the private workplace. The Constitution does not prevent private employers from restricting their employees' political speech. Employers generally can restrict employees' speech during work time and on work equipment, especially if the employer has a legitimate, business-related reason to do so.
Your Mission Matters
Employees who bring politics into the workplace of a 501(c)(3) can jeopardize the organization's tax-exempt status. For some nonprofits, requiring employees to make clear that their partisan political activities are in their personal, not work, capacities may suffice. For others, such a distinction may be unworkable, requiring a total ban. Even if partisan political activity wouldn't threaten your tax-exempt status, such activity still may jeopardize your mission.
In some states, for-profit organizations and nonprofits other than 501(c)(3)s may justify such restriction based on their business needs or mission. Other states would not require any such justification.
What Do State Laws Say?
An employer's ability to regulate off-duty activity is governed largely by state law, and these laws vary.
Some states have few or no applicable laws. In Virginia, for example, employers may ask employees to refrain from engaging in problematic political activity even in their off-hours.
Conversely, other states, such as Louisiana, expressly prohibit employers from restricting employees' lawful off-duty political activity, even if such activity would conflict with the employer's mission or core values.
Most states, however, fall somewhere in the middle. For example, North Dakota, Colorado, and New York have broad laws permitting employees to engage in lawful off-duty activity, including political activity, but they make a narrow exception if the employer can demonstrate that a prohibition on the activity is related to an essential business interest. Connecticut bars employers from interfering with the exercise of rights guaranteed by the First Amendment, and largely applies rules to private employers similar to those applied to public employers under federal law. The District of Columbia prohibits discrimination based on party affiliation; while an employer could create a viewpoint-neutral policy prohibiting campaign activity, it would be essential to enforce it across the political spectrum.
Our democracy may aspire to lofty ideals, but prudent management of election-related issues in the workplace frequently boils down to nitty-gritty issues like the following.
If your business is a 501(c)(3) nonprofit, you must restrict employees from using company time and organizational resources to support a candidate. Your employees may not make campaign flyers on the office copier or use the organization's mailing list to pinpoint potential campaign donors. You must prohibit employees from using their work-issued phone number, email address, office address, or your company's name when communicating with candidates or participating in a political campaign.
For-profit organizations are permitted, but not required, to restrict these activities.
For political activity relating to federal elections and elections in some states, an employee using company resources, such as conference rooms, customer or vendor lists, or overnight delivery services, must pay the company (sometimes in advance) for the use of such resources. If this is handled improperly, the company may be charged with making an illegal, in-kind contribution.
You may prohibit your employees from wearing campaign paraphernalia as a part of a neutral dress code. You may also tell employees not to post campaign signs in their cubicle, or tell them to take down a campaign sign from their cubicle.
But be careful: Under the National Labor Relations Act, you may not require an employee to remove political materials if they contain union insignia. Thus, you may not discipline an employee for wearing a "Local XX for [fill in the candidate's name]" button.
You may prohibit employees from engaging in conversations about political candidates or about controversial topics in the workplace during work hours. You should be careful that you do not restrict political speech that might relate to labor or working conditions.
If you allow political discussion in the office, be careful that such discussions do not turn into conversations about legally protected characteristics. Discussions about how someone is too old to be president, or how they should not be president based on their gender or religion could give rise to complaints of harassment or discrimination if an employee feels that a coworker or supervisor is treating them unfairly based on the same protected characteristics. This is especially true if a supervisor is having a political discussion with a subordinate.
You may usually restrict your employees' activities during breaks if those activities are on your premises or use your equipment. For example, you may tell an employee not to make fundraising calls on her work phone. However, if your employee is on an unpaid break, using her personal phone, and has left the office for lunch, the answer to this question will depend on your state's laws surrounding restrictions on off-duty political activity.
In most states, yes, unless the speech is related to union activity. While some states protect employees' ability to engage in this type of political activity, most do not. Even in the states that do protect this kind of activity, there may be an exception that will allow an employer to discipline or terminate an employee if the employer's interest in restricting the off-duty political speech is strong or if the activity can be linked to the organization (for example, you are more likely to be able to prohibit political speech made on LinkedIn than on an anonymous blog).
Generally, yes. However, if your organization is in a state that protects off-duty political activity, you will need to carefully evaluate whether your state's individual law will permit such a restriction.
If your state has a law protecting political activity, it is likely that running for office is protected. Absent such a law, an employer arguably could prohibit an employee even from running for political office.
Holding office may raise a different employment law question. Under a law protecting political activity, presumably an employer still could prohibit an employee from holding an office that would interfere with job performance. Absent such a law, an employer could prohibit holding office, as it could prohibit other outside activities.
Also bear in mind that conflict of interest rules may require an employee running for office to disclose his or her employment relationship on public disclosure reports, including compensation arrangements with the employer.
Once an employee becomes an elected official, other laws may apply. Some states regulate the ability of elected officials to sit on or receive compensation from a corporate board, and some bar businesses associated with an elected official from obtaining government contracts. In addition, some states prohibit the use of public resources and confidential information to benefit a business with which the individual is associated.
The short answer is: by enforcing your policies inconsistently or in an un-evenhanded way. Ideally, enforcement should be nonpartisan. In addition, any policies that prohibit political activity will likely be viewed more favorably if the policy captures political activity along with more neutral activities — for example, a dress code that prohibits all t-shirts will also prohibit political t-shirts, and a policy against general solicitation in the workplace can be enforced against employees soliciting donations for a candidate.
What Should You Do?
A policy. Do you have a policy regarding employee political activity? If not, talk to your lawyer about whether you should. If you do, review it to ensure compliance with current applicable law.
Training. Once you have a policy in place, train your managers about what is permitted and prohibited and the role you expect them to play in enforcing the policy with the employees they supervise.