As we head into the final weeks of the 2024 election campaigns, it's likely that American workplaces will be filled with employees discussing, arguing over, and participating in one of the country's hundreds of local, statewide, and national political contests.
While all that activity contributes to the inherent, essential messiness of democracy, employers must take care to know what they may be required to do or are prohibited from doing when it comes to their employees' participation in the electoral process.
Below are some phrases employers may be hearing from employees—or saying themselves—during this campaign season, and some high-level guidance on each. As always, if you have a specific question about your workplace, consult an attorney.
But first, we wanted to highlight a couple of recent developments that will provide some context for the current employment law landscape when it comes to elections; things have changed since the last election cycle!:
- The National Labor Relations Board (NLRB)—with Democrats currently in control— and its general counsel Jennifer Abruzzo (a Biden appointee) have been clear over the last few years: the NLRB is there to serve workers' interests, particularly in the backdrop of an uptick in union membership, organizing, and strike activities. The current NLRB has issued a number of recent worker-friendly decisions, and Abruzzo has been starkly more worker-friendly than her predecessors.
- The Stericycle decision from the NLRB in 2023 brought increased scrutiny to broad work rules (e.g., policies, handbooks) that may chill employees' exercise of their rights under Section 7 of the National Labor Relations Act (NLRA). Rules are now presumed to be unlawful if they could, rather than would, be interpreted to limit employee rights. They are also evaluated from the standpoint of an "economically dependent" person, rather than a reasonable one. Practically speaking, this decision means that rules must be drafted more narrowly to withstand scrutiny so as not to restrict employees' rights.
"But the First Amendment!"
A private workplace is not governed by the First Amendment. The much-cited right to free speech protects the government from restricting speech. This means that private employers can generally restrict employees' speech during work time and on work equipment (including email), especially if there is a legitimate, business-related reason to do so.
Employers in the public sector and nonprofit space will need to tailor their approaches differently; more on that below.
"Are you saying I can't talk about this important issue?"
Political issues frequently and necessarily dovetail with employment conditions. Section 7 of the NLRA protects employee conversations about, among other things, their working conditions. Frequently protected conversations include the topics of wages, benefits, schedules, and treatment in the workplace. Political candidates often discuss these issues on the campaign trail. Because these topics are protected, employers may need to permit discussions about controversial stances on the minimum wage, the economy, parental leave, and other hot-button issues.
Other than protected conversations, employers can restrict conversations about political candidates or controversial topics in the workplace. If you choose to do so, make sure you enforce the rule equally.
"You can't fire me!"
Any employer considering disciplining or terminating an employee for expressing a political opinion or taking a political stance (whether inside or outside the workplace) should act with care and consult with an attorney. In some jurisdictions (such as Washington, DC) political affiliation itself is a protected characteristic. In some states (like New York and California), employers cannot discriminate against employees based on their political activities. Even when political speech or political activities are not protected, anti-discrimination laws, at both the federal and state levels, could be implicated if the speech in question involves a protected characteristic (e.g., race, national origin, sexual orientation, age, religion, etc.) or if you have not always disciplined/terminated other employees who engaged in similar speech. This doesn't mean you can't fire problematic or disruptive workers – employers just need to be sure that they're doing it for legal reasons.
"But so-and-so is wearing a hat (or button or t-shirt, or has a poster)!"
If you don't want employees wearing political paraphernalia, consistency is key. Ensure that there is one set of rules and that it is enforced equally against every employee and every political stance. That can range from dress codes to advertising signs in a breakroom. Note that you may have to allow political slogans or signs if they are union-related. A button that says "Local XX supports Candidate!" would be hard to ban, even under a neutral and consistently enforced dress code.
"I only sent a tweet! I didn't even use my work phone to do it!"
Some employees may have nothing to say in the workplace and a lot to say outside of work. Ensure you have a social media policy that addresses off-duty conduct, and that any restrictions imposed are lawful where you do business (for example, Colorado has statutes that protect employees' off-duty conduct). If you already have a policy, make sure that the policy is applied equally. Grappling with political speech by employees outside of work is becoming more and more frequent in a society where most people can take videos, photos, and audio on their cell phones wherever and whenever.
Social media can be particularly challenging in today's divisive political climate. Repeating something a candidate says or sharing a meme about a particular racial, ethnic, age, religious, or gender group may even constitute harassment or discrimination if it is brought into the workplace. This is especially true if a supervisor is making the statement. Employers should be careful not to ignore any concerns employees bring to their attention just because the statement being objected to was made on social media or was not made on work time or equipment.
"But we're a mission-driven nonprofit! This candidate aligns with our mission!"
On one hand, nonprofits that are tax-exempt under Section 501(c)(3) cannot engage in any political campaign activity, and employees must not use organizational resources to do so. For example, employees cannot use the office copy machine to make flyers or use their work phone number, email address, or even the organization's name when politicking. Violations for these tax-exempt nonprofits can be significant, so it is prudent to keep a close watch to ensure they don't occur.
On the other hand, 501(c)(4), (5), and (6) organizations are permitted to engage in some political campaign activity. However, in federal elections and in some states, an employee using a nonprofit's resources, such as conference rooms, member or donor lists, or delivery services, must pay the organization for their use. The organization can be charged with making an illegal, in-kind contribution if this is not done properly.
Nonprofits of all types should have a policy about the types of political activity (if any) that employees can engage in using organizational resources. Now might be good time to review and remind your employees about that policy.
"This candidate would be good for our business; let's use company resources to support them!"
Federal law prohibits corporations from making contributions—including in-kind contributions of resources—to federal candidates. Using company space or resources for fundraisers can run afoul of the law unless the candidate pays the fair market value. State laws on this topic vary widely. In addition, it is important to remember that a company may not reimburse employees for campaign contributions.
In addition to the legal issues, whether to take a political stance as a company is a business decision that can have major implications for a company. We live in increasingly polarized times, where endorsements or even tacit support of political candidates or messages can have significant consequences, both in the marketplace for consumers and for employee morale. If you own or run a business and want your business to make a political statement, consider the practical ramifications of making such a decision and consult with an attorney about the risks. For example, requiring employees to attend a meeting where their boss explains why the business is getting behind a certain candidate could be illegal, like in New York.
"I need to leave work to vote!"
While there is no federal law that requires employers to give their employees time off to vote, many states require employers to provide employees with time off to vote. Some (like California and New York) also require employers to post a notice about this right. Make sure you have familiarized yourself with the rules that apply in your state before election day. Note that if you have remote employees in other states, they may be entitled to time off, which may be different from the state-mandated provisions for employees who come into your physical workspace.
What do you need to do?
- Draft or revise. If you don't have employee policies covering political activity, talk to a lawyer about drafting some. If you do, ensure that they are up to date and comply with all state and local laws.
- Communicate. Your employees may need to be reminded about these important policies, particularly as election seasons heat up.
- Train. Employers should regularly conduct training to ensure the policy is known and understood. This is particularly important for managers and supervisors, who are most likely to enforce it.
- Prepare. The adage of not discussing politics at the dinner table illustrates an important point: people care about politics, and elections can evoke a wide range of emotional responses, from hope and optimism to anxiety and uncertainty. Ensure you have a plan in place to handle these sensitive issues before they come up.
Employers with questions about how to handle politics in the workplace during an election year are invited to contact the authors of this article or any other attorney in Venable's Labor and Employment Group.