Can Your Boss Tell You How to Vote?

A recent New York Times Article quotes an open letter from Westgate Resorts CEO David A. Siegel to his employees:

The economy doesn’t currently pose a threat to your job. What does threaten your job, however, is another four years of the same presidential administration … If any new taxes are levied on me, or my company, as our current president plans, I will have no choice but to reduce the size of this company.

Is Siegel’s behavior legal? According to UCLA Law Professor Eugene Volokh:

[Voter protection] laws were much more important before the late 1800s, when the secret ballot was widely adopted; today, one sees almost no prosecutions or lawsuits under these statutes, likely because employers don’t know how their employees vote. Still, if the question is whether American law bars employers from firing or threatening to fire their employees based on how the employees voted, the answer is almost uniformly “yes.”

These laws also date back a long time; indeed, the earliest laws that we might view as bans on discrimination in employment involved bans on discrimination based on voting.

As early as the 1700s, several colonies and states barred any “attempt to overawe, affright, or force, any person qualified to vote, against his inclination or conscience,” and some also barred, “after the … election is over, menac[ing], despitefully us[ing] or abus[ing] any person because he hath not voted as he or they would have had him.”

So it’s illegal (though rarely prosecuted) for employers to “threaten to fire” employees based on their vote. But is it illegal for an employer to try to convince an employee to vote a certain way? Volokh writes again:

The question is what constitutes a forbidden (and constitutionally unprotected) threat and what constitutes a constitutionally protected prediction of economic trouble.

[E]mployers remain largely free to argue to their employees how the employees should vote, and to warn of dire economic consequences for the employer — and therefore to the employees — if an election (whether union, local, state, or federal) comes out a particular way. The mere possibility that some employees will take any message from their employer as coercive does not strip the employer of its constitutional rights.

If the employer threatens reprisals “to be taken solely on [its] own volition,” for instance because of management pique, that speech would indeed be treated as a constitutionally unprotected, and could lead to civil liability or even criminal punishment (if the relevant jurisdiction’s law does prohibit such speech).

Volokh makes these claims in light of NLRB v. Gissel Packing Co. (1969) and General Electric Corp v. NLRB (D.C. Cir 1997). His post excerpts the relevant sections of these cases.

*Emphasis to quotes is added

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