Why Ballot Selfies Are A Terrible Idea For Workers

Indiana is facing a free speech suit relating to a law they passed making it a crime to take a photo of yourself with your completed ballot. While the law is clearly overreaching and punishes the wrong people, I think the folks saying there is no risk of voter coercion are off the mark.

In the anti-employee climate that exists now, it's only a matter of time before employers start demanding proof of how you voted. Banning the practice of ballot selfies is one way to stop this practice before it starts. Think I'm overreacting? Remember these?

• I already wrote about a Florida CEO along with others like the Koch Brothers and other Mitt Romney  supporters who told employees if Obama was elected they would lose their jobs. 
• I also wrote about the Job Creators Network, that is training employers on how to indoctrinate employees on voting for the "right" candidates.

Your employer really, really wants to be able to tell you how to vote. If voter selfies are allowed, what's to stop these employers from demanding you produce your selfie before clocking in on election day? And what's to stop them from firing you if you didn't vote the right way?

Well, there are some laws in some, but not all, states protecting you from discrimination based on political affiliation. There are also some states with a bit of protection for voters:

• Michigan prohibits direct or indirect threats against employees for the purpose of influencing their vote. It also prohibits tracking of political activity.
• Ohio, West Virginia, Pennsylvania and Kentucky ban employers from posting or handing out notices threatening to shut down or lay off workers if a particular candidate is elected.
• Oregon makes it illegal to threaten loss of employment in order to influence the way someone votes. 
• Washington State makes it illegal to retaliate against employees for failing to support a candidate, ballot position or political party.
• In California, Colorado, New York, North Dakota and Louisiana 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."

Some counties and municipalities have additional protections for voters, but the one thing that doesn't protect you, unless you work for government, is the First Amendment. You have no free speech rights if you work for a private employer. The First Amendment only applies to government action.

I think you should never take a ballot selfie for this reason. It's a terrible trend that will only be abused by unscrupulous employers if it continues. What I think the laws banning them got wrong are that they are targeting the voters rather than those who may coerce them. 

I'd propose a very simple law: make it a felony to require anyone to disclose whether they voted or for whom they voted in order to continue their employment, their housing or their access to any public accommodation. I'd go one step further and make it illegal for employers to discriminate against any employee for voting, not voting, for the way they voted, and for supporting or not supporting any candidate or party. 

Punishing voters for their selfies is probably a First Amendment violation, but punishing coercion should be the law.

Can You Be Fired For Supporting A Political Candidate?

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.