With less than a month to go before the 2012 election, political passions are peaking. In a close race, some employers may be tempted to try to influence how their employees vote.
It’s not a rare occurrence. Four years ago, a Maryland construction executive happened to mention during the course of an interview with me that he was concerned about how his company would fare in the event that Barack Obama was elected president.
Those who remember ancient history might recall that Obama strongly supported card check — a streamlined process by which workplaces could become unionized. Many employers made defeating any candidate who supported card check a priority.
The employer told me that he openly shared his concerns about Obama and card check with his employees. “I warn them that if Obama wins, they will all lose their jobs,” he said.
His rationale: If Obama won, card check would become law and a union would come in and organize his company. The high cost of meeting union demands would drive him out of business.
In The Queen of Versailles, a documentary now in theaters, David Siegel, a Florida time-share mogul and builder of what he planned to be the biggest house in America, boasts that he single-handedly got George W. Bush elected. How? He had his managers do a survey on every employee and made those who liked Bush register to vote. He also deployed his vast cadre of call center workers to make calls on Bush’s behalf.
Is it legal?
Employers certainly have their right to their own opinion, but they must steer clear of federal and state laws aimed at curbing undue influence on how their employees vote. Ignoring these laws can land them in hot water.
To remind employers of what they can and can’t do legally, and perhaps prevent any pre-election feather ruffling among staff, we reviewed these issues and a few others with several employment law experts. Special thanks to attorneys John Snyder a partner at Jackson Lewis LLP in New York, Jonathan Fritts of Morgan, Lewis & Bockius LLP in Washington, D.C. and his co-professor at Georgetown University Law School, Harold Datz, a former chief counsel at the National Labor Relations Board, for providing a reality check.
How far can employers go to sway employees to vote a certain way?
Americans of course enjoy the privilege of private voting booths. So employers have no means of ascertaining whether their employees vote a certain way. According to Snyder, laws also restrict how far they can go to influence employees. The construction employer possibly stepped over the line and may have violated the National Labor Relations Act by linking his pitch against Obama to the unionization of his business. (The NLRA guarantees employees the right to organize and bars employers from making threats or taking any other action that could chill employee efforts to organize.) Because the employer’s comments could be interpreted as a veiled threat against employees who organize, they could be deemed to violate the NLRA.
Interestingly enough, the employer might have been within his rights had he made a similar comment, but steered clear of union issues. For instance, if he had said Candidate XYZ’s policies on taxes would put him out of business, he would not have bumped up against the NLRA.
Can employers require their workers to campaign for or against a particular candidate, as Siegel did?
That depends, Snyder says. Federal election laws limit which employees an employer tries to influence. Only executive and high level administrative personnel (generally those paid a salary) and who make company policy are fair game.
Some states, including California, Louisiana, Maryland and New Jersey, have laws expressly prohibiting employers from interfering in employee’s political activities.
In addition, New Jersey prohibits employers from requiring workers to attend employer-sponsored meetings about an election. Washington bars retaliation against employees who refuse to support a candidate, ballot position or political party.
In addition, some courts have recognized employees’ common law right to be free from employer-sponsored political expression.
Employers can, of course, control what happens on their property and thus can prohibit employees from campaigning for a political candidate at the workplace, right?
Not exactly, says Fritts. Employees may have a protected right under the NLRA to campaign on company property, if they link their candidate to workplace issues such as the minimum wage or employee safety.
The same general rule applies to an employees’ right to wear a button or other paraphernalia supporting a specific political cause or candidate. If the message is linked to union organizing or workplace conditions, an employer that tries to interfere or prohibit the activity may violate the NLRA.
The National Labor Relations Board explained its policy in a widely circulated 2008 memorandum to agency field staff. In determining whether political advocacy is protected, it determines whether an employee is advocating for a specifically identified employment concern. Political activity that is not related to employee problems or concerns generally will not be protected under the NLRA.
Employees have a legally guaranteed right to talk about political matters during their nonwork time, provided that such activities relate to unions or terms and conditions of employment. Federal law, however, only guarantees employees the right to distribute materials in nonwork areas, like break rooms.
Further, even during work time, and at workplaces, an employer cannot discriminate regarding union or concerted activity. For example, an employer could not permit political activity in support of one candidate and yet prohibit that activity in support of another candidate, Datz says.
Some courts have allowed employers to make a distinction between charitable solicitations — allowing groups like the Girl Scouts to solicit on employer property but not allowed noncharitable groups such as unions. Employers should follow the law of the federal circuit court in which they do business.
Can an employer attempt to influence an election’s outcome by requiring employees to work when the polls are open?
No federal law requires employers to allow employees to vote, or to provide voting leave. Some state laws, however, address the issue. For instance, several require employees who need to take time off from work to vote to give advanced notice. Others require employers to pay workers who take time off to vote. (See Taking a Poll: How Much Do You Know About Voting Leave?)
Related Thompson Resources
Thompson’s Guide to Employment Law Compliance, 8th Edition (Ch. 10, Labor Relations)