Top 10 questions about political activity in the corporate workplace
With the 2016 election quickly approaching, corporate employers are asking many questions about what they and their employees can and cannot do to participate in the electoral process. Both state and federal law prohibit corporations from using company resources to support a partisan political effort, except in very limited circumstances. While employers must take steps to ensure that corporate resources are not improperly used for political activity, they cannot interfere with an employee’s First Amendment rights and their right to voluntarily participate in the electoral process. The following is a cursory list of some of the most commonly asked questions about employee participation in elections.
1. Can we let an employee distribute candidate literature at the office?
Generally, no. Corporations cannot use corporate resources to support a partisan effort, except in very narrow circumstances. Allowing employees to campaign on company time and on company grounds can violate the law and subject the company to penalties and fines.
2. What about Citizens United? Aren’t corporations now permitted to freely engage in political activity?
The U.S. Supreme Court’s ruling in Citizens United v. FEC allows corporations and labor organizations to use treasury funds to make independent expenditures in relation to federal elections and to fund electioneering communications. However, the ruling did not affect the prohibition against coordinated corporate contributions to candidates.
While independent corporate expenditures are now permissible, federal and state laws still prohibit corporations from making a “coordinated” expenditure, or one that is made in cooperation, consultation or concert with, or at the request or suggestion of, a candidate, a candidate’s authorized committee or their agents, or a political party committee and its agents. Corporations that make independent expenditures must disclose them and follow the federal and state reporting and filing requirements.
3. Can we suggest that our employees make contributions to a specific candidate who is especially supportive of our industry?
No. Employees should not be coerced or enticed in any manner to make a political contribution. Employers should be very careful not to threaten or reward any employee for his or her support of any candidate, party or ballot issue. Employees may make voluntary contributions to a political cause from their own personal funds.
4. It is critical to our business to get our current representative re-elected. Since this is a legitimate business need, can we reimburse our employees for any political contributions they voluntarily make to this candidate?
Absolutely not. Both Ohio and federal law prohibit making campaign contributions through another person or entity. Moreover, corporations are prohibited from giving money, items, personnel, space or anything of value to (1) candidates; (2) non-ballot issue political action committees (PACs); (3) legislative campaign funds; (4) state candidate funds of a political party; or (5) a general fund of a political party.
5. Can we put information about voter registration or absentee ballots on the company website?
Yes. As long as the information is strictly nonpartisan and distributed in an unbiased manner, companies can provide voter education information to their employees.
6. Can our company support the local school levy?
Yes. An exception to the corporate contribution ban allows corporations to participate in nonpartisan ballot issue campaigns, such as a school levy or a statewide ballot issue. Making financial contributions, distributing literature prepared by a ballot issue campaign, allowing employees to help during work hours, or other direct or in-kind support is permitted. Employers should be careful that the activity is truly nonpartisan and should be aware that Ohio law requires corporations to disclose their ballot issue activity to election authorities.
7. Can we place literature or a poster about a state or local ballot issue in our company’s public lobby for our customers and clients to see?
Yes. In addition to the guidance given above, be sure that the literature has a disclaimer and is truthful. If an employer issues or distributes any publication in support of a ballot issue committee, that publication must include, in a conspicuous place, the appropriate disclaimer. And even though the “false statements” laws have been declared unconstitutional, falsely identifying the source of a statement, issuing statements under the name of another without authorization or falsely listing an endorsement are violations of campaign finance law. Not to mention, false statements have the potential to cast a negative light on your business.
8. Can we put a yard sign in our company window supporting a state or federal candidate?
Ohio law has a specific exception to allow corporations, nonprofit organizations and labor organizations to place campaign signs on their property. Because federal law is not so clear, we encourage caution with federal candidate signs. The Federal Elections Commission will generally defer to the corporation’s internal policy regulating signs supporting federal candidates on corporate property but has not issued anything formally on the matter.
9. A candidate wants to come to our facility for a visit. Can we permit this?
Yes. A candidate may come to a corporate facility for a visit, as long as there is no fundraising or campaigning at the facility. However, if a campaign wishes to use the corporate facilities and resources, the campaign must reimburse the corporation within a commercially reasonable time and at the usual and normal rental price. This means that the campaign must reimburse the corporation if, for example, a campaign uses corporate telephones, computers or office furniture.
If the business has a corporate PAC, the PAC can host a fundraiser for the candidate. But, the PAC must be careful that it (or the candidate’s campaign) covers the cost of the event and that invitations are handled carefully and in compliance with the law.
10. Are we required to give employees time off work to vote?
Not necessarily. Ohio law prohibits any employer from interfering with an employee on Election Day and requires that they be given a “reasonable amount of time” to vote. This does not mean that every employee must be given paid time off work to vote. Most employees should be able to vote before or after work, but additional considerations may be needed in cases where the employee’s polling location is far from work or the employee works an extended shift.
This document has been prepared as a general reference document for informational purposes. Public agencies and nonprofit organizations face additional restrictions that are not addressed here. The information contained herein is not intended to be and should not be construed as legal advice. Each circumstance should be considered and evaluated separately and possibly with involvement of legal counsel.
This article was reprinted from the Fall 2016 Compliance Connections Newsletter. Download the complete issue here.Download PDF