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, sometimes arguing, and sometimes participating in one campaign or another. Prudent nonprofits 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. Nonprofits generally can restrict employees' speech during work time and on work equipment, especially if the organization has a legitimate, business-related reason to do so.
Your Tax-Exempt Status. Nonprofits that are tax-exempt under section 501(c)(3) may not engage in any political campaign activity. The IRS has said that individuals who work for 501(c)(3)s generally maintain their right to engage in political campaign activity, but they have to do so in a way that does not implicate their employer. For example, employees—particularly senior employees—must be careful when endorsing candidates or making other political statements so that it does not appear the organization is endorsing the candidate. The IRS has said that communications should include a clear disclaimer that "titles and affiliations of each individual are provided for identification purposes only," when a nonprofit leader's name and position are included. Employees also should not make endorsements during nonprofit meetings and events.
For 501(c)(4), (5), and (6) organizations, which are allowed to engage in some political campaign activity, what an employee does or says on his or her own time is not likely to threaten your tax-exempt status.
Your Mission Matters. Beyond the IRS rules, it is also important to think about your mission. Would having an employee volunteer for a candidate on his or her own time jeopardize the organization's mission? For example, if the organization is involved in policy work on both sides of the aisle, even off-duty campaigning could cause the organization to lose credibility as a neutral party.
What about the opposite situation? What if your organization is politically active? 501(c)(4), (5), and (6) organizations are allowed to engage in political campaign activities, as long as they are not their primary purpose. In some cases, your organization may need to avoid coordinating its activities with candidates. Such organizations might need to restrict some of their employees from working for the candidates they support in order to avoid turning their independent activity into in-kind contributions. In some states, for-profit organizations and nonprofits other than 501(c)(3)s may justify such a restriction based on their business needs or mission; other states would not require any such justification.
What Do State Laws Say? A nonprofit'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. California's law likely protects both employees and job applicants, and prohibits employers from retaliating against individuals for engaging or participating in partisan and electoral political activity and, more broadly, political policy activity.
Our democracy may aspire to lofty ideals, but prudent management of election-related issues in the workplace frequently boils down to nitty-gritty issues such as the following.
May I prohibit my employees from using the office copier, telephone, or other resources for political activity?
If your organization is a 501(c)(3) tax-exempt nonprofit, you must restrict employees from using your nonprofit's time and resources to support a candidate. For instance, your employees may not make campaign flyers on the office copier or use the organization's member or donor lists to pinpoint potential campaign donors. You must prohibit employees from using their work-issued telephone number, email address, office address, or your organization's name when communicating with candidates or otherwise participating in a political campaign.
501(c)(4), (5), and (6) tax-exempt nonprofits are permitted, but not required, to restrict these activities.
For political activity relating to federal elections and elections in some states, an employee using your nonprofit's resources, such as conference rooms, member or donor lists, or overnight delivery services, must pay the organization (sometimes in advance) for the use of such resources. If this is handled improperly, the organization may be charged with making an illegal, in-kind contribution.
May I require an employee to remove a political button, t-shirt, or campaign poster?
You may prohibit your employees from wearing campaign paraphernalia as a part of a neutral dress code. You also may tell employees not to post campaign signs in their cubicle, or tell them to remove 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.
May I require my employees to stop talking about the campaign, candidates, or political issues?
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 someone should not be president based on gender or religion, could give rise to complaints of harassment or discrimination if an employee feels that a coworker or supervisor is treating him or her unfairly based on the same protected characteristics. This is especially true if a supervisor is having a political discussion with a subordinate.
May I prohibit employees from making campaign calls during their lunch break?
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 telephone. However, if your employee is on an unpaid break, is using her personal phone, or 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.
May I prohibit employees from posting about controversial or political topics on social media?
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).
May I require employees to remove political bumper stickers from the cars if they drive their car for official business?
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.
May I prohibit employees from running for public office? From holding public office?
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 in the same way 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 or grants. In addition, some states prohibit the use of public resources and confidential information to benefit a business with which the individual is associated.
How else might I get in trouble when restricting employees' political activity?
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 for donations for a candidate.
What Should You Do?
A policy. Do you have a policy regarding employee political activity? If not, talk to your attorney 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.