Morris Manning & Martin, LLP

When and How Can An Employer Limit Employees' Political Activity at Work?

07.26.2016

Client Alert - Several recent studies have found that political discussions in the workplace lead to increased volatility, and damage working relationships. This will likely be especially true in an election year as tempestuous as 2016, with a potential impact on productivity.

Employers may therefore seek to limit workers’ political activities in the workplace. On the other hand, some companies may feel that it is imperative for them to encourage their employees to support candidates whom the company believes will be good for business.

Daniel Prywes, a partner in our Washington, D.C. Litigation group, offers insight on some common election-year questions involving these issues.

 

Q: Can employers tell workers to avoid political discussions or arguments on company premises?

A: It depends on when the discussions occur and their content. 

Employers can prohibit employees from discussing politics during working (non-break) hours. Work time is for work, not politicking.

Employers generally cannot lawfully prevent employees from discussing political issues linked to the terms and conditions of employment while they are on meal or other breaks. Such issues could include a candidate’s position on higher pay for workers, family leave, the minimum wage, etc.

Under a recent ruling by the National Labor Relations Board, both unionized and non-unionized employees who have been previously granted access to the employer’s email system are generally entitled to send emails over that system to other employees with political messages that are linked to the terms and conditions of employment.

As a matter of law, employers are generally free to ban “pure” political discussions (unrelated to employment conditions) during breaks – such as a candidate’s position on foreign affairs or on social issues. However, in practice, such a ban may not be enforceable or even desirable.

The scope of permissible employer restrictions on employees’ political activity can vary from state to state because of differing state laws. In particular, some states have laws that prohibit employers from trying to restrict employees’ off-work political activities (including social-media postings), while others do not. At least two states prohibit employers from taking adverse action against employees who refuse to attend employer-sponsored political events.

 

Q: Do employer policies that restrict workers’ political discussions violate a worker’s First Amendment right to free speech?

A: Workers in the private sector often believe, incorrectly, that they have a right to engage in “free speech” on political issues in the workplace. In actuality, the First Amendment’s guarantee of free speech only applies to a government’s efforts to suppress speech. The Amendment does not apply to actions taken by private companies to rein in workers’ political activities.

However, it may be unlawful under some states’ laws for an employer to take adverse action toward a worker because of the latter’s political views or activities.

 

Q: Can a corporate employer encourage its employees to support a particular candidate?

A: The U.S. Supreme Court’s 2010 ruling in the Citizens United case broadened a corporation’s ability to engage in political advocacy. A corporate employer now has the right to communicate its support of a candidate to all its employees (and others), as long as the effort is not coordinated with a specific political campaign.

But federal civil-rights laws prohibit employers (or anyone else) from intimidating, coercing, or interfering with anyone’s right to freely vote as he or she chooses for federal office. Most states have similar laws. These laws do not prevent an employer from expressing its political preferences to employees in a non-coercive way.

Some states prohibit employers from making statements such as: “If my candidate loses, we’ll have to close all the plants.”

 

Q: Can employees demand time off to vote? 

A: Federal law doesn’t require employers to provide leave to employees to vote, but some states do.

 

Q: Can nonprofits urge their employees to support a candidate?

A: Under the federal tax laws, a 501(c)(3) charitable organization is prohibited from supporting political candidates. Therefore, nonprofits may not urge their employees to vote for specific candidates.

However, nonprofit organizations may hold a voter registration drive or host a candidate forum as long as all candidates (or their surrogates) have equal opportunity to speak and there is no fund-raising. The IRS has issued a revenue ruling providing more detailed guidance.

 

For more information, please contact the author:

Daniel I. Prywes
202.971.4182
dprywes@mmmlaw.com

More>