Good Counsel: Legal Limits

What you can—and can’t—do to restrict employees’ political speech.

American political dialogue has become increasingly contentious at a time when individuals have an unprecedented interest in public expression and an unprecedented ability to share their opinions through social media. When your employees share their political musings, especially when their profiles indicate their ties to your organization, that activity can have legal and public relations implications for your association.

This new landscape raises two important questions: Can employees’ political speech be imputed to the organization and endanger your 501(c) status? And can your association create policies limiting political expression without running afoul of free-speech rights?

Tax-exempt 501(c)(3) organizations cannot participate or intervene in political campaigns and must restrict lobbying to an insubstantial part of their activities. These rules are implicated when an organization communicates politically. But what about individual employees?

Associations should be cautious about what could be imputed to the organization. Employees might post (or repost) organizational content on their private social media accounts, or they may identify themselves as an employee in their profile. If they then post certain political content through the same account, that speech could be imputed to the organization and run afoul of the 501(c) rules.

What if you want to mitigate that problem or address other concerns, such as sensitivity to public relations exposure, through limiting what employees can post? Can you legally restrict employee political speech in social media?

A private employer doesn’t typically violate the law through private restriction of speech—the First Amendment and other local laws generally require government action. And while the National Labor Relations Act and other laws impose certain requirements on a private employer’s restriction of speech, as a general rule, the more political the speech, the more leeway an employer has in restricting it. When constructing policies, the following are generally safe:

Forbidding employees from identifying their employer or associating themselves with the employer on social media

Restricting employees’ political speech at the worksite or on work-supplied devices and networks at any time, and on personal devices during work hours or while on duty

Broader restriction of speech on personal time and on personal devices is more nuanced, and it’s important to consider applicable local laws. Because local laws vary, it’s always wise to consult local counsel before implementing restrictions on your employees’ political speech.

(Vladimir F. Loyd/Thinkstock)

Patrick F. Jessee, CAE

By Patrick F. Jessee, CAE

Patrick F. Jessee, JD, CAE, is executive director and CEO of Delta Sigma Phi Fraternity and Foundation in Indianapolis. MORE

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