Shell Workers Could Attend Trump Speech or Lose Pay -- Is That Legal?

BURNSVILLE, MN - APRIL 15: U.S. President Donald Trump speaks at a roundtable on the economy and tax reform at Nuss Trucking and Equipment on April 15, 2019 in Burnsville, Minnesota. At the special Tax Day roundtable Trump gave a defense of his 2017 tax cuts.(Photo by Adam Bettcher/Getty Images)
By Christopher Coble, Esq. on August 22, 2019 12:03 PM

Over the weekend, President Donald Trump spoke at Shell's Chemicals Petrochemical Complex in Pennsylvania, and images showed thousands of union contractors in attendance. The speech was ostensibly an official White House event, not sponsored by his reelection campaign, but that didn't stop Trump from doing a little politicking.

"I'm going to speak to some of your union leaders to say, 'I hope you're going to support Trump.' Okay?" Trump said. "And if they don't, vote them the hell out of office because they're not doing their job. It's true. It's true. Vote them out of office."

According to reports after the speech, those in attendance weren't there entirely voluntarily. Workers were allegedly told they could stay home, and forfeit overtime pay for the week. But is paying employees for attending political rallies -- or withholding pay if they don't -- legal?

Pay to Stay

"Your attendance is not mandatory. This will be considered an excused absence," read a memo allegedly sent from contractors to employees. "However, those who are NOT in attendance will not receive overtime pay on Friday." Some workers also claim they were instructed not to protest the President: "no yelling, shouting, protesting or anything viewed as resistance will be tolerated at the event," and "an underlying theme of the event is to promote goodwill from the unions."

As far attendance impacting overtime pay, the Pittsburgh Post-Gazette explains:

"Shell spokesman Ray Fisher explained that the workers onsite have a 56-hour workweek, with 16 hours of overtime built in. That means those workers who attended Mr. Trump's speech and showed up for work Friday, meeting the overtime threshold, were being paid at a rate of time and a half, while those who didn't go to hear the president were being paid the regular rate, despite the fact that both groups did not do work on the site Tuesday."

Fisher also clarified that the day was treated like other on-site safety trainings when it comes to compensation, saying, "this was treated as a paid training day with a guest speaker who happened to be the president."

Freedom of No Speech

Unless employers ban all workplace conversation, there's no way to outlaw all political speech at work. But how much talk is OK, and can employees be forced to listen? The First Amendment and federal and state discrimination aren't much of a defense for private sector employees fired for political speech. And as a general matter, most employees aren't protected if they refuse to work based on their political beliefs.

When it comes to bosses influencing their workers' politics, employers are restricted from influencing employees' actions in state and federal elections. But those restrictions don't necessarily cover basing overtime eligibility on listening to the president talk.

While the contractors were given a choice of staying home, it was a true Hobson's choice -- one worker said someone staying at home would be missing out on about $700 in pay and benefits. And Trump's speech wasn't entirely apolitical. Still, the union was probably allowed to require workers to be on site to be paid. Not necessarily a great look for Trump or the Shell plant, but not illegal either.

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