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.
- May I prohibit my employees from using the office copier, phone, or other resources for political activity?
- May I require an employee to remove a political button, t-shirt, or campaign poster?
- May I require my employees to stop talking about the campaign, candidates, or political issues?
- May I prohibit employees from making campaign calls during their lunch break?
- May I prohibit employees from posting about controversial or political topics on social media?
- May I require employees to remove political bumper stickers from the cars if they drive their car for official business?
- May I prohibit employees from running for public office? From holding public office?
- How else might I get in trouble when restricting employees’ political activity?
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.