Fortunately, employers can control political activities at work to a large extent, but there is a patchwork quilt of federal and state laws that governs this area. And, as always, this patchwork can be confusing.
Employers have the right to regulate and control employee work time and, as a result, may restrict an employee’s political activity during work time by prohibiting certain activities and behaviors that interfere with the employee’s (or other employees’) work.
An employer may also restrict employee campaigning on the job if that activity will cause the organization to be associated with a campaign or issue. For example, employees who have frequent contact with customers and clients, and whose speech in that role would likely be associated with and attributed to the company, may be asked to avoid on-the-job politicking.
FECA—The Federal Election Campaign Act
Private employers are covered by the Federal Election Campaign Act (FECA), as well as various other federal and state laws that affect political campaigning, donations, time off from work, and other political issues in the workplace. (Federal employers and employees are governed by the Hatch Act and the Hatch Act Amendments of 1993.)
Congress enacted FECA in 1971 and amended it extensively in 1993. The law’s intent was to rein in corporate influence over political candidates. FECA allows corporations to perform certain activities, while prohibiting others. The law does not apply to unincorporated businesses or partnerships. FECA places a number of prohibitions on employees and employers:
Managing an HR Department of One was recently recognized as one of SHRM's "Great 8" best-selling products. Examine it at no cost or risk for 30 days and find out what all the buzz is about.
Soliciting Contributions Under FECA
Under FECA, “rank-and-file” employees may be solicited no more than two times per year, provided that the solicitation is done by mail to employees’ homes in a manner that allows for anonymous responses.
Rank-and-file employees may not be solicited face to face, especially by their supervisors. On the other hand, executive, administrative, and professional personnel may be contracted directly for contributions, but FECA states that they may not be pressured to contribute.
PACs Under FECA
A political action committee, or PAC, is an organization established by an employer, labor organization, trade group, nonprofit, or any other interest group established to make contributions to political campaigns and parties or to support a single issue. The purpose of PACs, which began in the 1940s, is to allow the pooling of monies. In addition, individuals can contribute more to a PAC than they can contribute directly to a candidate.
FECA permits the use of payroll-deduction plans for employee contributions to a corporate PAC as long as the employee authorizes the deduction in writing. Allied PACs, such as unions, are also allowed to coordinate their contributions. A corporate-sponsored PAC cannot commingle funds with the company treasury.
Feel as if you're all alone in HR? Take on a partner—Managing an HR Department of One. Examine it at no cost or risk for 30 days. Get more information.
Terminations Over Politics Can Violate Public Policy Exception
Private employers who terminate employees over political activity may also face claims based on the “public policy” exception to the doctrine of employment at will. The seminal case to establish this use of the doctrine occurred in 1983, when a federal appeals court applied Pennsylvania state law to decide that an employer that terminated an employee for engaging in political activity had violated “a significant and recognized public policy” by interfering with the employee’s First Amendment right of political expression (Novosel v. Nationwide Insurance Co., 721 F.2d 894).
In tomorrow’s Advisor, “Can you ban posters and campaign buttons?” plus an introduction to the best-selling HR guide for smaller or even one-person HR departments.
If you have comments about this tip and want to post them on this page to share your thoughts with other HR Daily Advisor readers, simply enter your comments below. NOTE: Your name will appear on any comments posted.
Copyright © 2013 BLR Business & Legal Reports Reproduction in whole or in part without permission is prohibited.