The Washington PostDemocracy Dies in Darkness

May a private employer threaten to fire employees for running for political office?

The Orlando Sentinel reports that Marriott Vacations Worldwide fired an employee, Viviana Janer, because she refused to give up her campaign for County Commissioner (essentially the equivalent of a city council or a board of supervisors for Florida counties). The company offers this explanation:

But the company justified the firing, saying that Janer’s candidacy opened the company up to possible conflicts of interest, and that Janer hadn’t notified her employer of her intention to run.
Marriott Vacations Worldwide spokesman Ed Kinney said the company currently does not have any properties in Osceola, but competitors do, posing potential conflicts.

Janer had also not told the company up front that she was running for office, and the company learned of this only from news accounts; this might have exacerbated their concerns. But is such a firing legal?

1. There’s no constitutional barrier (e.g., under the First Amendment) to a private employer’s barring employees from running for office, or firing them if they do. The First Amendment constrains only government action, not private action.

2. There’s also no general common-law rule barring such private employer action. The general American rule is “employment at will,” which means that either the employer or employee can terminate the work relationship for good reason, bad reason, or no reason at all, unless there’s a statutory prohibition (e.g., an antidiscrimination statute) or a contractual promise of continued employment. Some courts have recognized some exception for this under the rubric of “wrongful termination in violation of public policy,” for instance if an employee is fired for refusing to do something illegal. But the one case that has considered a similar theory limiting firing of employees who run for office (Shovelin v. Central N.M. Elec. Co-op. (N.M. 1993)) has rejected the theory; and the general trend among lower courts is indeed to reject such theories.

Indeed, there are quite plausible reasons for employers to restrict their employees from running for office. First, rightly or wrongly, what an employee does in a public context — even off the job — ends up affecting public reaction to the employer. An employee who is running for office will often make enemies, such as the employee’s opponent (who may be elected and hold a grudge while in office), other political figures, or voters who dislike what the employee says on controversial issues. (The issues could be divisive social issues such as whether to enact a county-wide ban on sexual orientation discrimination, how to treat zoning disputes involving local abortion clinics, or whether to institute race-based affirmative action in county hiring. Or they could be equally divisive local issues, such as questions about controversial developments, local property taxes, and so on.)

In some situations, those enemies might take it out on the employer; we’ve certainly seen plenty of incidents when controversial off-the-job statements by an employee have led to a backlash against the employer. And this would be even more so if the employee is elected, and doesn’t just say things, but casts controversial votes in commission proceedings. If an employer is indeed barred by law from retaliating against employees for their candidacy, for the political statements they make during their candidacy or tenure in office, or for the votes they cast while in office, that might diminish the public backlash, since the employer can tell the public that it can’t control its employees’ actions in these contexts. But some people won’t get the message, and even some that do might still be soured on the employer as a result of the employee’s actions.

Second, if the employee is elected, the employee’s official actions can lead to other backlash against the employer. If, for instance, the employee votes for something that is good for the employer (or bad for the employer’s competitors), there might be accusations that the employee was bribed to do this by implicit employer offers of promotion or other favorable on-the-job treatment; or there might be accusations that the employee was forced to do this by implicit employer threats of firing or other retaliation. And accusations that an employer is trying to influence specific votes would be even more damaging — perhaps to the point of a criminal investigation — than accusations that an employer is just trying to bar an employee from running for office altogether. The government office’s recusal rules might diminish this problem, but they won’t eliminate it.

Third, if the employee is elected, this could make it harder for the employer to discipline the employee, for instance if a manager would be affected in his private life by some issue pending before the commission (e.g., some zoning or development question) and is worried about irritating the now-politically-powerful subordinate. And of course even a part-time post as a commissioner can sometimes keep the employee from being available during normal working hours.

Naturally, many employers might nonetheless find that having an employee in political office is nonetheless good for their business, or neutral. And one can argue that there are public benefits to increasing the pool of prospective officeholders, notwithstanding the burden that the officeholding might impose on their employers. But it does seem to me that many employers might reasonably conclude that having employees run for office poses too much risk of harming the company, and causing the employee to be a net liability for the company rather than a net asset. And that’s one reason (together with the general presumption of employment at will) in favor of courts’ not creating a common-law rule barring employers from dismissing employees who run for office.

3. But all that having been said, 17 states have indeed concluded — by statute — that employers indeed may not bar employees from running for office (or fire them for doing so). Many of the statutes expressly mention running for office; others speak more broadly of “political activity,” which would including running for office. The states that have such laws (or other laws that have this effect), as best I can tell, are California, Colorado, Connecticut, Hawaii, Indiana, Louisiana, Minnesota, Missouri, Montana, Nebraska, Nevada, New York, North Dakota, Oregon, South Carolina, West Virginia, and Wyoming. To give some examples,

California Labor Code § 1101: No employer shall make, adopt, or enforce any rule, regulation, or policy … [f]orbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office….
California Labor Code § 1102: 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.
Louisiana Revised Statutes § 23:961: Louisiana: Except as otherwise provided in R.S. 23:962, no employer having regularly in his employ twenty or more
employees shall … make, adopt, or enforce any rule, regulation, or policy forbidding or preventing any of his employees from engaging or participating in politics, or from becoming a candidate for public office … [or] adopt or enforce any rule, regulation, or policy which will control, direct, or tend to control or direct the political activities … of his employees ….
New York Labor Law § 201-d: [No employer may discriminate against an employee or prospective employee because of] an individual’s [legal] political activities [including running for public office] outside of working hours, off of the employer’s premises and without use of the employer’s equipment or other property [except when the employee is a professional journalist, or a government employee who is partly funded with federal money and thus covered by federal statutory
bans on politicking by government employees] …. [This section shall not be deemed to protect activity which] creates a material conflict of interest related to the
employer’s trade secrets, proprietary information or other proprietary or business interest.

For a (rare) example in which one of these statutes comes up, see Davis v. Louisiana Computing Corp. (La. Ct. App. 1981):

A corporate employer and its president and secretary-treasurer appeal from a judgment awarding $24,000 to a former employee as damages from being fired because he became a candidate for political office….
The corporation derived a substantial part (about 60%) of its business from Jefferson Parish and its school board and other governmental agencies. A substantial part of this business was negotiated rather than publicly bid. The corporation and its officers understandably did not wish to alienate the public officials with whom they dealt. When plaintiff became a candidate for Kenner city council, opposing a candidate supported by some Jefferson Parish officials, corporate secretary-treasurer Westerlund told plaintiff that the corporation would benefit if plaintiff withdrew his candidacy, and corporate president Harding thereafter fired plaintiff, who did not withdraw….
We note the “business” justification for firing plaintiff in this case is a real one: plaintiff’s candidacy would antagonize persons who could withdraw business from plaintiff’s employer. In that sense, plaintiff by his candidacy made himself a detriment to his employer and was “disloyal” to his employer. But the policy of the statute is unmistakable: the employer may not control political candidacy of his employees. We see no exemption from the legislative purpose because of the nature of the employer’s business.
Defendants argue that in any case firing an employee for being a political candidate is not proscribed by R.S. 23:961: that the statute only proscribes “any rule, regulation or policy” tending to control an employee’s political activity, or “threats” of firing. The record, however, supports the view that defendants did develop a proscribed policy as a result of plaintiff’s candidacy, and that plaintiff was threatened. Moreover, the actual firing of one employee for political activity constitutes for the remaining employees both a policy and a threat of similar firings.

So while the majority rule is that there is no legal bar on employers restricting their employees’ political candidacy, a substantial minority do impose such a bar. (Compare this BusinessWeek story, which I think seems to understate the degree to which there is such a substantial minority rule.)