Tuesday, October 30, 2012

Employer Communications and Elections

Late last week a memorandum sent by the the chairman and owner of Rite-Hite, a major Milwaukee manufacturer of industrial equipment, Mike White, to all employees essentially forecasting what he perceived to be the terrible effects of voting President Obama back into office made major waves.  That email upset a lot of employees and led to an outcry.  The Milwaukee Journal Sentinel highlighted the story but this type of behavior by employers around election time is nothing new as earlier this month an email sent out by the Koch Brothers to its employees supporting candidate Romney sparked outrage and Wynn Resorts, the third-largest casino operator in the U.S., recently mailed a "2012 General Election Voter Guide" to its 12,000 employees in Nevada likewise decided to express its preference for candidates to it employees.  Given how important our vote is for the most important office in the world, these communications raise huge issues and questions of what is allowed under the law.

In 2010 the Supreme Court of the United States made a ruling in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), that held, 5-4, that the First Amendment prohibited the government from restricting independent political expenditures by corporations and unions. The nonprofit group Citizens United wanted to air a film critical of Hillary Clinton and to advertise the film during television broadcasts in apparent violation of the 2002 Bipartisan Campaign Reform Act (commonly known as the McCain–Feingold Act or "BCRA").  The Court held that portions of BCRA §203 violated the First Amendment.  This ruling provided employers which much larger room to communicate to employees about political matters.  However, not all communications are lawful under election laws at both the state and federal level.

As mentioned in the Journal Sentinel article, White's email may run afoul of Wisconsin law on employer restrictions under Wis. Stat. sec. 12.07(3) which reads:
(3) No employer or agent of an employer may distribute to any employee printed matter containing any threat, notice or information that if a particular ticket of a political party or organization or candidate is elected or any referendum question is adopted or rejected, work in the employer's place or establishment will cease, in whole or in part, or the place or establishment will be closed, or the salaries or wages of the employees will be reduced, or other threats intended to influence the political opinions or actions of the employees.
There is a similar federal law housed under 42 USC § 1971- Voting Rights that reads:

(b) Intimidation, threats, or coercion
No person, whether acting under color of law or otherwise, shall intimidate, threaten, coerce, or attempt to intimidate, threaten, or coerce any other person for the purpose of interfering with the right of such other person to vote or to vote as he may choose, or of causing such other person to vote for, or not to vote for, any candidate for the office of President, Vice President, presidential elector, Member of the Senate, or Member of the House of Representatives, Delegates or Commissioners from the Territories or possessions, at any general, special, or primary election held solely or in part for the purpose of selecting or electing any such candidate.

With the Citizens United ruling comes a lot of confusion over what is allowable, protected speech by employers to their employees about their political preference and what is not.  The FEC recently stated that, in general, employers may suggest how employees should vote.  The problem is how to do that without appearing to intimidate, threaten or coerce.  Thus, employers ought to take extreme precaution in distributing political communications as criminal prosecution is a potential remedy for violating election law and employees, if they feel a communication is threatening, coercive or intimidating, ought to seek counsel.  What will happen to Rite-Hite has yet to be determined and probably will not be resolved prior to next week's election.

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