It’s the year 2016 and we can no longer avoid the election cycle and its zany, tiring antics. For workplaces, it’s time to address elephant in the room.
The latest gaffe comes from (you guessed it) Donald Trump, whose NDA that the campaign apparently routinely gives to volunteers was leaked to the press and contains some ridiculous requirements, many of which likely won’t hold up in court. The documents entail a non-compete, which extends to an vague “Non-Compete Cutoff Date” and forbids volunteers working for another presidential candidate, or share any sensitive information from the campaign trail. Under this contract, volunteers are also forbidden from disparaging “the Company, Mr. Trump, any Trump Company, any Family Member, or any Family Member Company or any asset any of the foregoing own, or product or service any of the foregoing offer.” And the cherry on top of this NDA sundae? It instructs volunteers to have their employees follow suit.
For any number of reasons—volunteers give up rights without receiving anything in return like employment status, it instructs volunteers to be responsible for the free speech of others—this contract is almost certainly legally unenforceable. The real problem here isn’t the legality, per se. For many of the fervent Trump supporters who sign this the contract merely cements what they were planning on doing anyway. The problem is the perceived legality.
So let’s talk about employment law and primary season. Regardless of your political leanings it’s certainly an incisive election cycle, and it’s not as simple as just straight up banning all talks of politics in the workplace—though most private employers can, as Fiona Ong writes for The Labor & Employment Law Report:
There are no federal laws applicable to private employers that protect employees on the basis of their political affiliation. (Public employers, however, may be subject to such laws). As far as state laws, only a few – such as California, Louisiana, and the District of Columbia – have enacted laws that prohibit discrimination by private employers against an employee based on political affiliation. Some cities and counties may have local ordinances that also provide such protections. In those jurisdictions, employers cannot take any adverse employment action against an employee simply because he supports a particular political party.
Regardless of whether political affiliation protections exist, however, a private employer can prohibit political discussions in the workplace. “But what about the First Amendment right to free speech?” some may ask. The First Amendment prohibits the federal government from limiting citizens’ free speech rights – but it doesn’t apply to private employers! So employees do not have a right to free speech in a private workplace, and the employer can choose to restrict speech on any topic – including politics.
Of course there are caveats. At least two states – South Carolina and Connecticut – protect freedom of expression. But even there, employers can prohibit political speech if it is disruptive. Of course the employer needs to ensure that it is being consistent in enforcing any speech prohibitions, as political discussions can sometimes implicate other protected characteristics – like race, gender and religion.
But if you’re outside one of those states, it’s likely that the law might be a bit more unclear, and definitely more in the middle. More often than not, laws around this subject deal with protecting employees from discrimination because of their political activities outside of their job, as Douglas B. Mishkin, Ro Jacobs, Larry Norton AND Robin L.S. Burroughs note for the Political Law Briefing:
Most states, however, fall somewhere in the middle. For example, North Dakota, Colorado, and New York have broad laws permitting employees to engage in lawful off-duty activity, including political activity, but they make a narrow exception if the employer can demonstrate that a prohibition on the activity is related to an essential business interest. Connecticut bars employers from interfering with the exercise of rights guaranteed by the First Amendment, and largely applies rules to private employers similar to those applied to public employers under federal law. The District of Columbia prohibits discrimination based on party affiliation; while an employer could create a viewpoint-neutral policy prohibiting campaign activity, it would be essential to enforce it across the political spectrum.
But, as the article continues, perhaps the most common questions come down to workplace resources: Can you prohibit employees from using workplace resources to campaign? Does my authority extend to the lunch break?
There’s some variation here, across borders and ordinances, obviously. But the one truism that will always help? A clear, established policy, that’s as uniformly enforced as any other policy. Knowing the guidelines in your jurisidiction so you can properly set your own rules will help your actions stand up in court, unlike Trump’s NDA.