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Can a Company Tell Its Employees Who to Vote For? Yes, Sort Of

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By Casey C. Sullivan, Esq. on October 25, 2016 1:59 PM

As the election draws ever closer, can corporate leaders round up their workforce and attempt to influence their employees' votes? The answer is, like so many others: maybe.

Federal election law generally restricts companies from communicating with rank-and-file workers about political candidates. But for a special "restricted class" of employees, corporate electoral advocacy and political fundraising is fair game.

FEC Regulations and Solicitable Employees

Whether a company can attempt to influence a worker's political views depends on the employee's status within the company. Federal Election Commission regulations allow businesses to engage in electoral advocacy with a "restricted" or "solicitable" class, even allowing companies to ask members of the restricted class for donations to a corporate political action committee.

So, who is solicitable? The company's executive or administrative personnel, corporate stockholders, members of the restricted class of a company's subsidiary, branch, division, or affiliate, and immediate family members of any of these individuals.

Simply being a salaried employee, however, does not make one a member of the company's executive or administrative personnel. Such workers must also exercise policymaking, managerial, professional, or supervisory responsibilities. (Lawyers count, too.) "Lower-level supervisors," the kind who directly watch over hourly employees, are explicitly excluded.

There's Still Plenty of Uncertainty When It Comes to Office Politics

There's still a lot of gray area around election laws and corporate speech, however, particularly following the Supreme Court's Citizens United decision six years ago. As the Chicago Tribune notes, some legal experts say the FEC's regulations "haven't kept up with the changes that Citizens United brought.

The FEC prohibits employers from coercing workers when it comes to monetary donations or fundraising. But the rules are not as clear about what happens if the corporation, acting independent from the campaign, compels workers to, say, stuff envelopes.

And last year, the FEC dropped two complaints against Murray Energy, an Ohio-based coal company that forced employees to attend a rally for Mitt Romney and allegedly strong-armed workers for donations, during the 2012 elections. The Commission deadlocked, splitting along party lines, leaving plenty of uncertainty over the legality of such mandated rallies.

Finally, in-house counsel should be aware of local laws. States such as California and Louisiana protect workers against discrimination based on their political views, for example, while New Jersey prohibits mandatory meetings whose purpose is to convey the employer's religious or political views. Some courts have even found a common law "right to be free from employer-sponsored political expression," according to the Association of Corporate Counsel.

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