Politics is on everyone's mind as we gear up for November elections.
More than ever, companies in America are politically charged and outspoken. Many companies have a stake in the 2016 presidential election and support a specific candidate.
While political activity and freedom of speech are the crown jewels of our democracy, employers need to be wary of potential claims of coercion by employees.
What follows are a few issues employers should be aware of.
Political contributions: encouragement vs. coercion
Make no mistake: the law is clear that employers cannot coerce their employees to make political contributions. But what is coercion? Federal Election Commission regulations prohibit employers from using coercive tactics, such as threats of negative employment actions (a demotion, for example), threats of financial penalties, etc., to pressure employees to contribute to a campaign.
Things get a bit stickier when an employer's words of "encouragement," which are protected as free speech, don't rise to the level of a threat. When encouragement becomes coercive is a gray area that will depend on the facts and circumstances of each instance.
There are legal ways to go about promoting employee contributions, but here are a few tips for employers who want to avoid finding themselves in a lawsuit:
- Make sure employees know a contribution is 100 percent voluntary. This will also ensure employees feel valued by the company and help create goodwill, even if an employee disagrees with your political alignment.
- Educate employees on their right to refuse without reprisal (and stay true to that). If an employee feels that he or she might be punished for not contributing, the employment relationship will suffer. No political contribution is worth the cost of a productive employee.
- Talk to an attorney before encouraging political contributions from employees. An attorney can help you avoid the appearance or perception of coercion.
If your company is using a Separate Segregated Fund (a type of PAC) to support a political party or candidate, federal regulations actually requires you to take certain steps, including:
- Only solicit contributions from certain high-level employees, such as executives, stockholders and administrative personnel.
- Inform employees of the fund's political purpose at the time you solicit funds.
- Explain to employees that if they refuse, there is no reprisal.
In addition, you are allowed to distribute guidelines for contributions to SSFs, such as a percentage of income or an amount based on level of salary, but make clear that it is merely a suggestion and that the employee will receive no benefits or disadvantages surrounding any contribution. That said, employers using an SSF should carefully review the appropriate regulations and speak with an attorney.
Political activities
Mobilization of a workforce can be highly effective politically.
Florida private-sector employers have broader freedom when it comes to encouraging employee political participation, but are still constrained from using certain coercive tactics.
Florida remains an at-will state, meaning that an employer can terminate an employee with or without cause, so long as it is not discrimination against a protected characteristic. Political affiliation is not recognized as a protected characteristic under Florida law, but please be aware that some counties in Florida do protect it.
Debate exists about how much political participation an employer can solicit from employees.
Since a landmark decision in 2010, corporations have had significant freedom to promote and even require certain types of employee political participation. It should not come as a surprise that many employers have taken advantage of that freedom in extreme ways. For example, some employers have mandated employee attendance of workplace meetings urging support for candidates, political events outside of work, and even to actively participate in a candidate’s campaign.
The scope of what actions are protected as free speech and what actions are illegal coercion is still a gray area, but Florida statutes shed light on what companies can and cannot do in this regard, and the statutes prohibit the following:
- Don't fire or threaten to fire someone for voting or not voting
- Don't bribe an employee for voting
- Avoid making threats or using intimidation to influence an employee's vote
Individuals are guaranteed freedom of speech from government entities – not from private companies. But that doesn't mean employers can run roughshod in the name of the American spirit.
Experienced plaintiff's attorneys will be well-versed in federal and state laws and looking for opportunities to make a claim for coercion, especially during election season when zealousness is at its peak.
Now is a great time for company management to consider their approach to political communications with employees.
For more information, contact Gunster employment attorney Meredith Biggs, or any member of the firm's labor and employment law practice.
