This election season, some some entrepreneurs took liberties with workplace political speech. That could land them in legal hot water.
The morning after President Obama was reelected, Robert Murray, CEO of the largest privately-held coal company in the U.S., gathered 50 of his staff together for a meeting that began with a prayer.
As Murray committed his company to the care of his Lord, he also aired his differences with President Obama, saying that the President's policies amounted to a "war on coal" that necessitated the layoffs of 150 mine workers, to be announced the following day.
"The takers outvoted the producers. In response to this, I have turned to my Bible," Murray's prayer reads. "Lord, please forgive me and anyone with me in Murray Energy Corporation for the decisions that we are now forced to make to preserve the very existence of any of the enterprises that you have helped us build."
It wasn't the first time Murray had mixed politics and work. This summer, Murray allegedly forced some employees to pose for video cameras, without pay, behind Mitt Romney during a televised stump speech. He also reportedly sent emails to workers threatening them with layoffs if they failed to donate to his Republican political action committee, according to an October story in The New Republic.
Murray is pushing the legal boundaries between politics and work, and he's not the only one. More than a half-dozen privately-held companies threatened layoffs or cutbacks if President Obama won reelection this year. They include ASG Software Solutions, Cintas, Dana Holding, Koch Industries, Lacks Enterprises, Rite Hite, and Westgate Industries.
At best, linking politics with a decision to lay off employees will land an entrepreneur in a legal grey zone. Murray himself is likely to wind up in court, legal experts say, for violating state laws regarding electioneering in the work place. There's already a complaint in front of the Federal Election Commission. And experts point out that in addition to the questionable legality of Murray's moves, anything smacking of coercion in the office also engenders terrible ill will among your employees.
That doesn't mean that all political speech is banned in the workplace, but it does mean that if you can't restrain yourself, you need to approach the topic with extreme caution.
A new landscape
It's often unclear which types of speech are allowed in the workplace. The First Amendment, which protects freedom of speech, applies to public spaces. Most offices are private spaces, however, so an employee's freedom of speech is not necessarily guaranteed at work. Unless your state has a separate statute dealing with political speech and elections, employers are pretty much free to say whatever they want.
Citizens United has only made the workplace speech issue thornier, says Alec Beck, a partner with Minneapolis law firm Ford Harrison. He's referring to the controversial Supreme Court Case, decided in 2010, which opened the doors to unlimited campaign finance spending from corporations and unions. Beck says the decision also significantly changed what corporations can and can't say to employees regarding elections and politics.
"Traditionally, corporations were limited in what they could say politically," Beck. "In essence, there were some restrictions of the First Amendment as it applied to private sector corporations, but Citizens United changed this."
Prior to the ruling, the Federal Election Commission confined corporate electioneering to a restricted class of employees that included executives and salaried employees. No more. "Citizens United made it easier for employers or corporations to communicate with all employees," Beck says, including non-salaried and contract workers.
In addition to being able to express electoral preferences to more workers, the ruling allows companies to express preferences to vendors and customers. Companies may also encourage registration for a particular party, distribute voter registration information advocating for or against specific candidates, prepare and distribute voter guides that advocate for a particular candidate, and finance voter mobilization, such as voter identification activities, some legal experts say.
While Citizens United seems to allow more unrestrained political speech--and some legal experts warn such activities may wind up in court because a precedent has yet to be set--that doesn't mean your organization should go ahead and do it.
Anything that smacks of voter coercion could potentially be viewed as harassment, says Kathryn Quesenberry, a partner at Cincinnati, Ohio law firm Dinsmore & Shohl. "Employers have to be careful because the law recognizes an employer-employee relationship is a different one, and the very fact that an employer creates a livelihood for an individual can give the employer more sway than other sources of information."
Nor should you insert religion into your political speech, as Title VII and many state laws protects against discrimination based on religion. Plus, such statements could be construed as either discriminatory or intimidating.
Then there are state laws, which may further restrict political speech. In Ohio, where Murray is based, state law prohibits employers from putting signs and placards at work containing "threats, notice, or information that if any particular candidate is elected or defeated work in the establishment will cease in whole or in part.” Similarly, Kentucky makes it illegal for an employer to “coerce or direct any employee to vote for any political party or candidate.” New Jersey forbids holding captive meetings or lecturing employees about how to vote.
While Ohio's law does not mention emails or other electronic means of communication, its intent is clear: Employers should not make threats about layoffs based on the election of a particular candidate in any shape or form, says Quesenberry.
"The more difficult issues are what happens in advance of [layoffs or firings], and what employers are telling employees about what could happen if the election had a certain result," Quesenberry says.
As a business owner setting policy, you should use common sense, and strive for balance and consistency, Beck says. For example, you could have a policy that bans all forms of electioneering in the office.
"Employers have free speech too, but they should be somewhat restrained," Beck says. "It is a horrible thing for morale to be heavy-handed in this area."