In my home state of Florida (why is it always Florida?), a CEO sent an email to all of his thousands of employees saying that, if Obama is elected, they would likely lose their jobs. He didn't threaten to fire them for supporting Obama, but did make it clear that, should Obama win, his employees would suffer dire consequences. Then a Wisconsin employer followed suit. The Koch Brothers did the same.
It turns out that Mitt Romney personally instructed CEOs to use this tactic with their workers.
So, have the CEOs crossed a line? Probably not. At least yet. Here are some things employers can't do during this political season:
Limit Discussions On Which Candidates Would Improve Working Conditions: While employers can certainly prohibit general political discussions and political campaigning at work, the National Labor Relations Act says that private employers cannot prohibit discussions about workplace conditions. Therefore, if employees discuss the employer's lengthy email about why a candidate is better for them as workers, then the employer can't fire employees who voice that the employer's email is full of misleading and incorrect information and that the other candidate is very clearly the better choice for working Americans. On the other hand, employers can force you, as a captive audience, to attend meetings and listen to one-sided political pitches on behalf of candidates unless you live in Oregon, which has the Worker Freedom Act. New Jersey has a similar law.
Discriminate Based On Political Affiliation: Not all states have laws prohibiting this, but many do. States that don't have such laws may have county or city ordinances that specifically prohibit political affiliation discrimination.The Civil Service Reform Act of 1978 prohibits political affiliation discrimination against federal employees.
Discriminate Based on Race, Sex, Religion, National Origin, Etc.: If your employer limits political discussions by some, but not all employees, then they may run afoul of discrimination laws. Much of today's partisan politics is about religion, for instance. Women's issues are hot topics in this political season. The presidential candidates are of two different races and religions. If your employer wants only one point of view expressed in your private sector job, the First Amendment won't help you but discrimination laws might.
Prohibit Labor Union Insignia: While employers can prohibit wearing of most political buttons, shirts and other campaign items, it can't prohibit union insignia. They could probably, for instance, prohibit a button that says, "Obama," but not one that says, "Teamsters For Obama."
Reimburse You For Political Contributions: If your employer says you should write a check to a candidate and agrees to reimburse you for it, they are breaking the law and could even go to jail.
Prohibit Time Off to Vote: Most states, but not all, require employers to let you take time off to vote.
State Laws That Might Help
In some states, these employers' threats may be illegal. For instance, in Michigan, the laws prohibit direct or indirect threats against employees for the purpose of influencing their vote. It also prohibits tracking of political activity.
In Ohio, West Virginia, Pennsylvania and Kentucky, employers are prohibited from posting or handing out notices threatening to shut down or lay off workers if a particular candidate is elected.
In Oregon, it's illegal to threaten loss of employment in order to influence the way someone votes.
In Washington State, it's illegal to retaliate against employees for failing to support a candidate, ballot position or political party.
Some states, like California, Colorado, New York, North Dakota and Louisiana, say it's illegal to retaliate against an employee for their off-duty participation in politics or political campaigns.
In Florida, it's a felony to "discharge or threaten to discharge any employee in his or her service for voting or not voting in any election, state, county, or municipal, for any candidate or measure submitted to a vote of the people."
In general, remember that the First Amendment doesn't protect you in a non-government workplace. Be careful out there, and don't forget to vote.
Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.