Editors’ Note: When our firm talks about political activity, we are often focused on what 501(c)(3)’s and other types of exempt organizations can and can’t do. Our former teammate, Charli Cleland, even made a video about it! There’s always a fine line for our firm to walk between (a) encouraging organizations focused on social justice to be as active and engaged in the political process as their far-more-resourced opponents, and (b) not misleading them about the real boundaries that exist in terms of partisan election intervention (e.g. never OK for a 501(c)(3), OK in limited doses for a 501(c)(4)) and legislative lobbying (e.g. OK in small doses for a 501(c)(3) public charity, never OK for a 501(c)(3) private foundation, unlimited for a 501(c)(4)). Today’s post comes from our employment expert, Daniel Lac, and walks a similar tightrope: how to respect employees’ rights without failing their obligation to maintain a workplace free of harassment and discrimination. With the election and its aftermath around the corner, this is a very timely matter for nonprofit employers to be thinking about, and we’re lucky to have his insight to share.

Although often cited as a source of free speech rights, the First Amendment does not actually provide employees with a constitutional right to express political thoughts or opinions in a private workplace (as it only controls government action). As a general matter, employers can regulate what employees say and do in the workplace during working hours. However, federal and state laws exist that complicate an employer’s efforts to control the political speech, activities, affiliation of their employees.

Federal Law on Political Activity in the Workplace

The federal National Labor Relations Act (NLRA), which applies to most private-sector union and nonunionized workplaces, protects employees’ right to engage in “concerted activities” for “mutual aid or protection” relating to the terms and conditions of their employment. This protection has been interpreted to cover certain types of political activity and speech (i.e. attending a protest or rally relating to minimum wage increases or speaking out against employer’s political and societal views):

·       In Eastex, Inc. v. NLRB, 437 U.S. 556 (1978), the US Supreme Court held that an employer engaged in unfair labor practice where it prohibited its workers from distributing a leaflet during nonworking hours and break areas “criticizing a Presidential veto of an increase in the federal minimum wage and urging employees to register to vote to “defeat our enemies and elect our friends.”

·       In NLRB 18-CA-273796 (Feb. 21, 2024), the National Labor Relations Board held that an employer violated the NLRA when it discharged an employee for refusing to remove the hand-drawn letters “BLM” — the acronym for “Black Lives Matter” — from their work apron. The Board reasoned that the employee’s refusal to remove the BLM marking was protected concerted activity because it arose out of employee protests about racial discrimination in their workplace and because it was an attempt to bring those group complaints to the attention of the company’s managers)

·       Of note, particularly the current political climate, is that the NLRA has also applied to protect unpopular political speech/viewpoints in the workplace. In NLRB 32-CA-164766, an employee was found to have engaged in protected concerted activity where he criticized the employer’s workplace diversity and social justice initiatives on the employer’s internal social network platform and complained that politically conservative employees with unpopular political views were being targeted in the workplace. The employer’s subsequent discipline on that employee for engaging in protected concerted activity therefore violated the NLRA.

State Laws on Political Activity in the Workplace

To complicate things further, many states afford employees with greater specific protections around employee political activity. These state laws prohibit employers from:

·       requiring, threatening, or coercing employees to vote for a particular candidate or cause;

·       retaliating or discriminating against employees for engaging in political activities (i.e. supporting a particular candidate or a cause) or holding certain political affiliations;

·       influencing, intimidating and/or coercing employees to support or oppose a candidate or cause;

·       directing political affiliations/contributions;

·       regulating employees’ lawful off-duty political activity or use of lawful off-duty products (i.e. campaign signs, buttons, posters);

·       punishing employees who decline to attend political events or meetings sponsored by the employer; and

·       denying employees from taking time off from work to vote (ranging from 2-4 hours and in some states, without loss of pay).

Notwithstanding these federal and state laws, employers also generally have the right to curb activity and speech that is violent, harassing, derogatory, abusive or discriminatory. Indeed, under equal employment opportunity laws such as Title VII and state corollaries, employers have an affirmative duty to identify, prevent and remediate such conduct or else face liability. Employers must therefore strike the right balance between respecting protected activity while ensuring such activity does not veer into unlawful territory.

Recommendations for Addressing Political Activity in the Workplace

As a starting point, employers should consider taking the following proactive steps to mitigate the spillover effects of election season in the workplace:

·       Adopt and implement work rules related to legitimate employer interests (i.e. no solicitation during working time in working areas, and limiting use of organization resources and equipment for political contributions/activity);

·       Have clear written policies relating to anti-discrimination, harassment, and retaliation, and social media use comply with federal law and state laws, and ensure that all employees review, acknowledge, and undergo training on these policies;

·       Carefully evaluate employees’ political activity and speech to ensure it’s not protected by federal or state laws, ideally with the assistance of legal counsel, before imposing discipline.

·       Be prepared to promptly and effectively address and curtail speech or activity where it becomes violent, harassing, discriminatory, derogatory, or abusive.

Conclusion

Given the myriad laws and regulations discussed above, nonprofit employers face unique risks on multiple fronts when dealing with political activity in the workplace. They must ensure (a) that it and its employees’ political activity do not jeopardize its tax-exempt status; (b) they do not violate employees’ right to engage in political activity/speech under federal and applicable state law; and (c) prevent speech that is harassing, derogatory, abusive or discriminatory. 

The attorneys at Mill Law Center and MLC Employment are available to assist you in navigating these and other issues.