Several employers, including the Koch brothers, have recently warned workers of bad consequences if they don't vote and the Republican fails.
Last week, timeshare mogul and garish home-owner David Siegel was caught sending an email -- largely cribbed from a debunked hoax -- darkly suggesting that his employees vote for Mitt Romney because a victory for Barack Obama would endanger the economy and with it all of their jobs. This week, In These Times' Mike Elk uncovered the impressive array of materials sent to employees at the Koch brothers' Georgia Pacific, largely along the same lines. Up with Chris Hayes found another case at ASG Software Solutions, a Florida software company: "We have been able to keep ASG an independent company while still growing our revenues and customers. But I can tell you, if the US re-elects President Obama, our chances of staying independent are slim to none." And on Thursday, Elk struck again, publishing a recording of a conference call where Mitt Romney encouraged members of a conservative businessowners' group to put pressure on employees to vote for him:
I hope you make it very clear to your employees what you believe is in the best interest of your enterprise and therefore their job and their future in the upcoming elections. Nothing illegal about you talking to your employees about what you believe is best for the business, because I think that will figure into their election decision, their voting decision and of course doing that with your family and your kids as well.
Is that true? Can your boss really tell you who to vote for? The answer is probably yes -- depending on where you live, and assuming you're employed in the private sector. In most of the country, there's little restriction on such communication, legal experts say.
Basically, employers have freedom of speech. That means they can say what they want, including strongly suggesting that employees vote for candidates and sending sample ballots to them. Your boss can't walk into the voting booth with you, and she can't pay you to vote for a particular candidate, but often there's little else he or she can't do.
In most states, at least. Some have stronger laws than others, as Catherine Fisk, a professor the University of California Irvine School of Law notes. In California, for example, the law states that "no employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity." Those laws tend to be in states with strong union presences.
Many southern states have weaker protections, including Florida, where Siegel and ASG are located. Essentially, it comes down the employer's right to free speech, says Joseph Little, a professor emeritus at the University of Florida School of Law. "The traditional notion of employment in Florida is referred to as employment at will. That means that the employers can discharge an employee at any time for any reason, which could include a political reason," he said. But he also said the way the letters are phrased could be relevant. Each of the examples uncovered so far involves cajoling: If Obama wins, we think he'll raise taxes and tank the economy; if that happens, we might have to lay you off, and therefore we strongly recommend you vote Romney. "If they said, 'If Mr. Obama gets elected I'm going to fire y'all no matter what happens to the business, then that is a threat," Little says. "Even so, if it's employment at will, most likely there's nothing illegal about that. That's brutal, it's hard politics, but that's the nature of employment of will."
Things could be stickier in Oregon; Elk got materials sent to Georgia Pacific employees there. The Beaver State has a law against political communications to "captive audiences," so a manager couldn't call a mandatory meeting and talk politics, but the law is mostly untested, and it's not clear that it would cover written communications anyway. But another law might. It prohibits use of "undue influence" -- defined as including " loss of employment or other loss or the threat of it" -- to convince someone to vote in any particular way. Koch Industries told In These Times it was simply offering information, and noted that unions often distribute sample ballots too. But of course the relationship between an individual and his collective bargaining unit is entirely different from his relationship with someone who can fire him -- and is actively suggesting that might happen. It's arguable that the Georgia Pacific materials violated this law, says Henry Drummonds, a professor at Lewis and Clark Law School in Portland.
Unsurprisingly, the AFL-CIO takes a more expansive view of the protections afforded to workers. Associate general counsel Laurence E. Gold suggested that the employers could be breaking either criminal or civil law, though both are ambiguous in this situation. But Gold and others see a connection between rules in the National Labor Relations Act and political activism. Employers are barred from, for example, threatening to close a plant if employees unionize. By analogy, lawyers see a way in which threatening to close a plant if workers fail to elect the right candidate might also be barred, although it isn't clear that courts would find the same.
This isn't the only allegation of employers exerting improper pressure on workers. Alec MacGillis reported that Murray Energy, an Ohio mining company, has allegedly been pushing employees to make contributions, which is likely illegal. The letters are a different matter, but they're also somewhat unusual in recent history. It's likely that they would have been riskier for employers prior to the Citizens United decision. Back then, they could talk to managers. Now, they're free to communicate directly with employees -- though Gold suggests they'd have to disclose the costs of such communication.
"Employers have mostly been gun-shy about doing this," Gold says. "Employers ought to be very circumpsect about this, and people ought to look at what they're doing with tremendous skepticism."