July 24, 2013
Potential Pitfalls of Volunteer Employee Political Activity
As the New Jersey 2013 gubernatorial and legislative general election season kicks into high gear and as the State is preparing for a special primary and general federal election, New Jersey employees may get caught up in the momentum and decide that they want to volunteer their time or services for a campaign. True volunteer activity that takes place outside of working hours and without the use of company resources may not be of concern to an employer, but if an employee volunteers for a political campaign during working hours and uses company resources, the company could be making an in-kind contribution to a campaign. This could be of particular concern on the federal level where corporate contributions are prohibited or in New Jersey where stringent pay-to-play restrictions are in effect and where certain companies (i.e., banks, utilities, insurance companies and casinos) are subject to the regulated industry ban. For example, if an employee decides to host a fundraiser for a New Jersey gubernatorial candidate and uses company resources (email, letterhead, staff, copy machines, postage, etc.) in connection with his or her individual political activity, the company could be making an in-kind contribution in excess of the $300 per election limit applicable under New Jersey’s Executive Branch pay-to-play restrictions. Similarly, if an employee decides to volunteer his or her time for a candidate for US Senate during working hours and spends more than 1 hour per week or 4 hours per month on his or her volunteer activities, the employer could be making a prohibited in-kind contribution to the US Senate campaign. Further, if the employee decides to engage in fundraising activities and uses company resources in connection with his or her efforts, the employee could be subjecting his or her employer to financial liability in the form of civil penalties. Although employers need to recognize that their employees have a First Amendment right to engage in political activity, employers should also be proactive during this election season to make sure their employees are properly educated on the potential pitfalls of their volunteer political activity.