Amid this year’s dark and divisive presidential election, the 2012 campaign can feel like a distant memory. But four years ago this month, a flurry of stories focused in on corporate chief executives who were ominously telling their workers what might happen if President Obama won a second term. If that happened, the chief executive of Westgate Resorts said, he would have “no choice but to reduce the size of this company.” The chief executive of a software company in Florida warned that “if the U.S. re-elects President Obama, [the company's] chances of staying independent are slim to none.”
And Mitt Romney himself encouraged business owners to “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.”
While 2016 hasn't brought the same kind of headlines, it’s not because the law has really changed. It is still legal for corporations to advocate for specific candidates when communicating with their rank-and-file employees. Private employers can distribute materials that tell all their workers the company's positions on political issues. And if your boss were to send an email urging you to attend a rally for Donald Trump or Hillary Clinton this weekend, because electing their favorite candidate is “essential for the future of the company,” legal experts say they would be within their rights.
As this heated election sprints to the finish line, it's impossible to game out every situation employees might face. While many workers may never hear a political pitch from their boss, it can still be surprising to hear what workers and their employers can and can't do when it comes to mixing politics and work. (That is, if they work for a private employer; government workers have much more in the way of protections. Some rules are also different for union workers.) Six years after the Supreme Court’s Citizens United decision gave employers greater ability to express their political views and engage in unlimited “independent” political spending, experts say some legal questions remain unresolved, leaving gray areas and gaps in regulation that could leave workers at risk.
In a private company, employees are often surprised to hear they don't have the First Amendment rights they do outside the workplace, says Lindsay Burke, vice chair of the employment law practice at Covington & Burling. Companies can’t prohibit workers from talking about labor issues and working conditions during workplace breaks, so a cafeteria debate over Trump’s position on the minimum wage or water cooler chatter over Clinton’s parental leave policies should be protected. But employers can ban staffers from soliciting donations from their co-workers for political candidates. And technically, companies could ban other political speech in the workplace, even if few of them try to police it.
One type of campaign banter that should get more scrutiny, however, is anything that creates a harassing or discriminatory workplace, Burke says. In an election that’s lurched from controversial statements about one protected class after another — with raging debates about religion, race and gender — she’s gotten complaints from clients about workers making distasteful jokes about “building walls.”
“You can find your way into harassment and discrimination claims if people are parroting the statements or arguments of the candidates in a way that others find offensive,” she says.
Employers, meanwhile, have seen their rights grow when it comes to political speech, especially since the Citizens United decision expanded the First Amendment rights of corporations and unions. As long as they're not coordinating with the campaign, corporations can now encourage rank-and-file employees to make contributions to candidates. The decision has also made corporations more comfortable with giving all employees educational materials or “voter guides” that make their political positions clear, says Ken Gross, who leads the political law practice at Skadden, Arps, Slate, Meagher & Flom in Washington. Before the decision, he says, companies were more careful to “make those things not slanted and not favor one candidate over another. Now I think they’re pretty clear as to where they’re going with those communications,” even if they don't directly name candidates.
At the same time, some legal experts say, the Federal Election Commission's regulations haven't kept up with the changes that Citizens United brought. The FEC prohibits employers from coercing workers when it comes to monetary donations or fundraising. But the rules are not as clear about what happens if the corporation, acting independent from the campaign, compels workers to, say, stuff envelopes. “One of the problems is the FEC, after Citizens United, has been unable to resolve these issues,” says Larry Noble, a former FEC general counsel who now holds that title at the nonprofit Campaign Legal Center.
Some have argued that election law, as it currently stands, permits employers to actually require workers to participate in certain independent political activities, such as attending a rally. Others say it's more of a gray area that hasn't yet been sorted out.
“It leaves me thinking this is an area where there’s litigation in the future that's going to help write these rules a little more clearly than we have them today,” says Robert Lenhard, a lawyer who works in the elections and political practice at Covington.
When it comes to employment law, some states, such as California and Louisiana, offer workers protection from discrimination regarding their political views. But at the federal level, such protections are weak, says Debra Katz, a Washington-based labor lawyer who represents employees, meaning it's possible workers could be terminated for objecting to the company's political activities. Other than in certain states, there is a “failure of the law to provide any type of protection for political affiliation discrimination or refusal to engage in political activity that your employer asks you to engage in,” Katz says. “That is clear as a bell.”
Many point to high-profile decisions by the FEC to close two complaints involving Murray Energy. The complaints alleged the Ohio-based coal mining company mandated that workers attend a Romney rally in 2012 — images of miners standing behind the shirtsleeved GOP nominee were later used in Romney advertisements — as well as that the company pressured workers to make donations to the company’s political action committee, reimbursing them with bonuses.
In both cases, the commissioners deadlocked along party lines, closing the complaints without taking any action. (In a company statement emailed by a spokesman, Murray Energy said it was pleased the FEC ruled there were “no issues;” the company and its chief executive “consider these matters closed, and will continue to vigorously exercise their rights to participate in the political process as the law allows.”)
Some think the FEC’s deadlocked response could prompt some companies to push the envelope. “When you have . . . the compliance people and the outside lawyers saying, 'Look, be careful here, stay well within the line,' and then they see a case like the Murray case,” Noble says, “they’ll be like, 'Why are we being so conservative about this? Why don’t we get more aggressive?”
A 2015 survey of about 1,000 U.S. employees conducted by a Harvard researcher found that 25 percent said they experienced some kind of political message from their employer, including simple voter registration efforts at work and messages about political candidates. Seven percent of the respondents said they felt these messages were “somewhat coercive” and another 7 percent said “strongly coercive.”
Yet others say the risk of behavior like the kind described in the Murray complaints is quite low. Gross, whose practice counsels a few hundred large, publicly traded companies on election issues, says he doesn't see clients testing those gray areas. “I have to say the Citizens United impact has been minimal,” he says, noting clients are “not that adventuresome.”
Not only do many companies not want to do the required reporting that goes along with such spending, but they're cautious about turning off employees. “It just doesn’t go over well in the workplace, to really be pushing hard for one candidate or the other,” he says. He adds: “It can backfire and it can be bad business.”
However much chief executives are actually promoting their favorite candidates, when they do it appears to work. A recently published academic study found that employees donate significantly more money to the candidate their chief executive supports. By examining reports to the FEC, the authors wrote recently in the Harvard Business Review, they found the link “is strongest in firms that explicitly advocate for political candidates.” The study, which looked at U.S. federal elections between 1999 and 2014, found that chief executives overwhelmingly gave to Romney in 2012 — some 174 of the 197 chief executives in that sample — and thus, employees did, too.
That may offer one reason for this year’s election not turning up the same kind of high-profile, strongly worded letters from chief executives urging employees to vote a certain way, as there were in 2012. A recent Wall Street Journal analysis found that through August, none of the chief executives in the Fortune 100 had given donations to Trump’s campaign. “This election is unique in many ways,” Gross says. “The traditional corporate support for the Republican candidate is not lining up.”