October 30, 2012 –
Supreme Court ruling allows employer/employee political communications

As we charge through the final days of October leading up to next week’s hotly contested elections, we are sure to be inundated with television commercials, radio advertisements, and a multitude of emails explaining why one candidate or party is a better choice than the other.

In preceding years these advertisements and discussions took place away from the workplace. Employers were prohibited from speaking directly to employees regarding political affiliation, candidates, or voting preference. However, after the Supreme Court’s ruling in Citizens United vs. FEC, 130 S. Ct. 876 (2010), employers may now freely communicate with employees and offer support to specific federal candidates and political parties.

The typical Citizens United analysis focuses on corporations being legally considered a “person” and with that designation, its Constitutional rights, namely the right to free speech. Included within this right to free speech is the right to spend money on political campaign advertisements and donate funds to Political Action Committees. This greatly increased both corporations and labor unions influence in politics by allowing the entities to make contributions of any amount and “expressly advocate” for one position or another.

Another significant, yet less discussed, impact of the Court’s decision is that companies are now allowed to directly communicate and educate their employees on federal political races and critical issues. Most importantly, employers may suggest which federal candidate to support. Companies may communicate verbally or in writing with their employees, and are free to offer guidance based upon their company’s view. While Citizens focuses solely on federal races, the implication is that restrictions on state and local races would also be deemed unconstitutional.

Regardless of your party affiliation, this decision should not be ignored. All business owners need to be aware that while they have the right to engage employees politically, there are potential legal ramifications for choosing to do so, and legal counsel should be sought before taking action. In the event that your business decides to take a politically active position and/or implements a Political Compliance Program, Gunster’s attorneys can assist with identifying potential pitfalls and vet all communications prior to distribution.