Employers and electioneering

I came across a Huffington Post/YouGov poll today that asked a simple question: “Should it be legal or illegal for companies to ask employees to vote for candidates they support?” Not surprisingly, as of the time of my vote (I said yes), the vast majority of responders said “illegal”.

In reading this question, it would not surprise me if a lot of people were of the mindset that the company in question would be able to determine how a particular employee voted and could then weed out those who don’t align politically with the company. Except that’s not entirely possible.

In the United States, all elections are carried out by secret ballot. This wasn’t always the case, and the practice wasn’t universal across the United States until 1892 (there were 44 States in the US at the time). Under that practice, it would be impossible for someone to determine how you voted unless you explicitly say how you voted.

That a person voted in a particular election is public record, but how that person voted is not available. It is not possible for someone to determine from public records how you voted in a particular election, only that you voted. So it would be impossible for your employer to determine whether you voted for a candidate they support.

Now your employer may be able to determine who in their company voted in the most recent election. If they believe voting to be important, they could use that information to modify company policies to try to encourage as many to get to the polls as possible. They may also be able to determine if they’re registered to vote and, again, modify company policies to encourage registration. A lot of people think there are major privacy concerns at play here, but I don’t share that point of view.

So then, if your employer wants to promote a particular candidate around the office, should that be illegal or legal? I believe it should be completely legal, so let’s get into this.

For one, there’s the First Amendment to the Constitution. The Supreme Court of the United States ruled in the infamous and landmark Citizens United case that corporations can promote political candidates or causes. They are still open to the consequences of their political speech, but they are not barred from making it. This means that if a corporation wishes to send out an e-mail to employees encouraging them to support a particular candidate or ballot initiative, they are free to do so. I think the only subjects on which they are still barred from doing so have to do with unionization or labor relations, courtesy of Federal laws and regulations regarding those topics.

For example, I work for a large health care corporation in the United States. This past election cycle they didn’t send out any messages encouraging us to support any particular candidate or ballot initiative. The same for 2012 when Missouri Proposition E was on the ballot regarding health insurance exchanges in the State — it requires the legislature or voters to approve any health insurance exchange to be created under the Affordable Care Act.

While they never sent out any kind of communication asking us to support a particular candidate or ballot initiative, it is not illegal for them to do so, nor should it be illegal for them to do so.

But again I feel in considering this question, many probably think that corporations could go one step further and reprimand or otherwise show disfavor toward employees who do not vote a particular way. Political affiliation is not a protected class under employer discrimination laws, and at-will employment laws mean a person or their employer may terminate employment for any reason or none — except reasons specifically barred by discrimination laws.

So could a person be terminated simply for voting the “wrong way”? Yes.

Would any corporation actually do such a thing? No. There is plenty that safeguards against such an action that most do not readily consider.

For one, if the employee in question had a long tenure with the company, that person would be very costly loss to the company. Even then, training a new employee would be expensive for most companies. Every employee brings some kind of value to the company that would be lost if they were terminated, even if for cause.

Second, nothing bars the employee from going public with the reason for their termination. I know the typical retort: the employer would sue the former employee to keep them from going public. While this could happen, truth is a defense to any lawsuit alleging libel, slander or defamation. So if you believe you were terminated because of your politics, and only because of your politics, you’d better be able to defend such a claim if you go public with it.

If the employer can cite a different or compounding reason for your termination, you lose. And as lawsuits are public record, if you lose a defamation suit brought by a former employer, you lose even more. So if you’re going to go public with claims that are defaming toward your previous employer, you’d better be absolutely right about it, because you may have to defend those claims in Court.

So in the end, yes an employer should be allowed to encourage their employees to vote a particular way. And while an employer technically can fire an employee for not voting a particular way, there are numerous safeguards that would prevent an employer from doing so.

But the only way your employer could know, definitively, how you voted is if you actually say how you voted.