It’s that time again; employers and their employees are getting ready to vote. It is an exciting time that engenders a good deal of discussion—and probably some arguments—at coffee machines and in lunchrooms.
As with many areas of employment law, a patchwork quilt of federal and state laws governs the employer interface with political issues. And, as always, this patchwork can be confusing!
Federal Laws
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.
Private employers are covered by the Federal Election Campaign Act (FECA), as well as various other federal 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.
Federal Election Campaign Act
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 (http://www.fec.gov) places a number of restrictions on employees and employers:
- Holding fundraisers on company property is illegal if the room is not customarily available to clubs or civic organizations. Also, the political recipient must reimburse the company for use of the facility.
- Use of company postage or contribution of other materials, such as letterhead and printed envelopes, is prohibited.
- Use of company equipment, such as copiers, is prohibited.
- Use of company labor is illegal, unless the corporation receives advance payment for the fair market value of the employee’s service.
- Volunteer employee work is allowed, but it may not be coerced in any way.
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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 employee’s 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 each the employee authorizes the deduction in writing.
Public Policy
Private employers may face claims based on the “public policy” exception to the doctrine of employment at will if they should terminate an employee based on political views.
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Campaign Posters and Buttons
No laws specifically regulate this sort of partisan activity for private employers and employees. Private employers can decide yea or nay about this, although we recommend that employers have a written polity regulating it. Consider the following:
- If you have a nonsolicitation policy that is neutrally enforced, you can refuse to let employees distribute or post flyers at work.
- You may want to remind employees of your policy before Election Day.
- If an employer prohibits the wearing of political buttons or posting of political posters, the company should be certain that the prohibition is followed absolutely.
- You can also ban slogan buttons or T-shirts as part of your dress code policy, particularly for employees who come into contact with clients or customers.
- If anyone, including the company president, wears an election button, the ban loses its force, and an employee disciplined for violating the policy may have a claim for wrongful discipline or discharge, or even coercion, under state law.
- Also, any embargo on buttons may not extend to union buttons worn during a union organization or election as this is protected under the National Labor Relations Act.
In tomorrow’s Advisor, more on political activity in the workplace, and an introduction to a policy program that includes all the policies you’ll need, prewritten and ready to go.