The 2016 U.S. presidential election has the potential to be one of the most controversial and troublesome elections in U.S. history. There is a broad spectrum of issues employers can anticipate as a result of employees’ political speech or activities—ranging from discrimination, harassment, and retaliation claims to unfair labor practice charges to decreased employee morale and productivity. The following is a state-by-state (and District of Columbia) guide of key laws regulating politics in the workplace of which employers should be cognizant. Act now to prepare your workplace and develop an action plan for compliance with applicable laws.
Alabama
An employer may not use coercion to influence an employee’s vote in an election, and it may not seek to examine an employee’s ballot. Examples of coercion include threatening to discharge an employee; reducing an employee’s compensation or benefits; punitively changing an employee’s schedule or job description; reducing compensation; or other similar actions.
Alaska
Threats to inflict damage, harm, or loss to induce another person to vote or refrain from voting in an election are strictly prohibited.
Arizona
Employers may not coerce employees to support or not support a referendum or recall; include in compensation materials any statements to influence the political opinions or actions of employees; or display any notice within 90 days before an election that directly or indirectly attempts to influence employees to support or not support a particular candidate by stating that if a candidate or ticket succeeds, there will be consequences in the workplace.
Arkansas
Threats or efforts to intimidate individuals with respect to whether and how they choose to vote are barred.
California
Employers may not prevent an employee from participating in the political arena in any capacity; direct the political activities or affiliations of an employee; or threaten to discharge an employee for engaging or refusing to engage in certain political activity.
Colorado
Employers may not threaten to discharge employees because of their memberships in or connections to a political party; create or enforce a rule or policy to prevent an employee from engaging or participating in politics; or discharge an employee for lawful off-duty activities, such as voting in an election or advocating for a particular candidate or political viewpoint (subject to a private cause of action).
Connecticut
Employers may not discipline or discharge employees for exercising their First Amendment rights (subject to a private cause of action). However, exceptions are provided for activity that materially interferes with an employee’s bona fide job performance or working relationship with the employer.
Delaware
Employers may not coerce or attempt to coerce any person with respect to his or her voting activity (subject to a private cause of action).
District of Columbia
Employers may not discriminate against employees based on their affiliation with or support for any political party (subject to a private cause of action).
Florida
Employers may not discharge or threaten to discharge employees for their voting activities with respect to any local election. Coercion of an individual with respect to the individual’s registration to vote or other voting activity is prohibited.
Georgia
Coercing (indirectly or otherwise) any individual with respect to a recall or intimidating voters through acts reasonably causing the voter to fear for his or her safety is prohibited.
Hawaii
Threatening injury, damage, or loss—or otherwise interfering with “the free exercise of the elective franchise”—to compel an individual to vote or not vote for a candidate or political party is unlawful.
Idaho
Attempting to directly or indirectly influence voters by using threats (including employers’ threats to discharge employees) is illegal.
Illinois
The use of threats or intimidation to prevent any person from supporting or opposing an individual’s nomination or election for public office is unlawful. Additionally, an employer may not maintain records of an employee’s off-duty political activities unless the employee submits hard-copy records to the employer and/or otherwise authorizes the employer’s collection of such records. Illinois also forbids employment discrimination or retaliation for an employee’s off-duty use of “lawful products,” which could arguably include social media platforms such as Facebook.
Indiana
Threatening to damage a voter’s business or trade to influence how he or she votes is unlawful. Additionally, employers may not include in compensation materials any statements to influence the political opinions or actions of employees or display in the workplace any notice that threatens to close the business or reduce work and/or compensation should a particular candidate get elected.
Iowa
Threatening or coercing an individual with respect to registering to vote, voting, and/or signing a petition is unlawful.
Kansas
Voter intimidation is strictly prohibited.
Kentucky
Employers may not coerce employees with respect to their votes for any political party or candidate for state office; threaten to discharge an employee based on his or her voting activity; disseminate any communication stating that employees are expected to vote for a particular candidate; or attempt to bribe or otherwise induce employees to vote a certain way in a state election.
Louisiana
Intimidating individuals with respect to their political party affiliations is unlawful. Additionally, employers may not allow an employee’s political contributions to affect his or her compensation or employment. Employers with more than 20 employees also may not prevent employees from engaging or participating in politics (including becoming a candidate); control or direct employees’ political activities or affiliations; or threaten to discharge employees if they support or participate in certain political organizations or activities.
Maine
There are no applicable politics in the workplace laws.
Maryland
Influencing an individual’s voting activity through intimidation or bribery is forbidden. Additionally, employers may not include in compensation materials any statements to influence the political opinions or actions of employees or display any notice within 90 days before an election that uses threats to influence employees to support or not support a particular candidate, including threats to close the business or reduce work and/or compensation should a particular candidate get elected.
Massachusetts
Employers may not take adverse employment actions or promise more favorable terms of employment to influence employees with respect to their votes or political contributions.
Michigan
Employers may not discharge or threaten to discharge employees to influence their voting activities. They are also prohibited from maintaining records of an employee’s political activities unless such employee submits hard-copy records to the employer or otherwise authorizes the employer’s collection of such records or the records pertain to activities that occurred during working hours, or on the employer’s premises and interfered with an employee’s job performance.
Minnesota
Employers may not directly or indirectly threaten discharge or financial reprisals to compel an employee to vote for or against a candidate, ballot question, or recall petition or as a reprisal for an employee’s political contributions or activities. There is an exception for employers that can establish that the desired political affiliation or viewpoint is a bona fide occupational qualification.
Mississippi
Employers may not interfere with the political rights of employees (subject to a private cause of action).
Missouri
Employers may not prevent employees from engaging in political activities or discriminate against employees based on their political beliefs (subject to a private cause of action).
Montana
Using threats of harm, damage, loss, coercion, or undue influence to coerce individuals in their voting activities is unlawful. Nor may employers discriminate against employees because of their use of lawful products, which can be broadly defined.
Nebraska
Employers may not attempt to coerce employees in voting or political activities, or threaten to discharge employees because of their political activities or close the business as a result of election results.
Nevada
Employers may not enact rules or regulations that bar employees from engaging in politics or serving in public office. Nor may employers discriminate against employees because of their use of lawful products, which can be broadly defined.
New Hampshire
Voting intimidation is prohibited.
New Jersey
Employers may not threaten employees with injury or loss in connection with their voting activities; punish employees in connection with their voting activities; include in compensation materials any statements to influence the political opinions or actions of employees; display any notice within 90 days before an election that threatens to reduce compensation or conduct layoffs depending on election results; or mandate employees to participate in employer-sponsored meetings or communications regarding the employer’s political stances regarding issues or candidates (such requests are permissible if employees are informed they may refuse to participate without reprisals).
New Mexico
Employers may not coerce employees through direct or indirect threats of discharge or discharge them because of their political beliefs or voting activities.
New York
Employers may not discriminate against employees because of political activities that take place while off-duty, outside an employer’s premises, and without use of employer equipment. An exception is provided for political activities that result in a material conflict of interest with an employer’s business interests.
North Carolina
Employers may not directly or indirectly intimidate, discharge, or threaten to discharge employees because of their voting activities. Nor may employers discriminate against employees because of their use of lawful products, which can be broadly defined.
North Dakota
Employers may not discriminate against employees for engaging in lawful activities (including political activities) while off-duty and outside of an employer’s premises. An exception is provided for activities that directly conflict with an employer’s essential business interests.
Ohio
Using intimidation or threats to influence a person to support or oppose a petition or initiative is unlawful. Additionally, employers may not attempt to influence employees’ political beliefs or voting activities.
Oklahoma
Voting intimidation is prohibited.
Oregon
Using undue influence (including job loss threats) with the intent to influence individuals’ voting, political activities, and/or contributions is forbidden.
Pennsylvania
Employers may not threaten employees with harm or loss to influence their voting activities; include in compensation materials any statements to influence the political opinions or actions of employees; or display any notice within 90 days before an election threatening to reduce compensation or conduct layoffs depending on election results.
Rhode Island
The use of intimidation for purposes of influencing voting activity at an election is unlawful. Additionally, within 90 days before an election, employers may not include in compensation materials any statements to influence the political opinions or actions of employees, including threatening to reduce compensation or conduct layoffs depending on election results, or display any notice containing such threats.
South Carolina
Intimidating an individual because of his or her political opinions or activities is unlawful. Employers also are forbidden from discharging employees based on their political opinions or activities.
South Dakota
The use of threats of harm or loss to intimidate individuals in their voting activities is unlawful. Employers also may not include in compensation materials any threats or statements intended to influence the political opinions or actions of employees or, within 90 days before a general election, display any notice containing threats to employees depending on election results, including threats to reduce their compensation or conduct layoffs. Employers proved to be in violation of such laws automatically forfeit their charters.
Tennessee
Employers may not coerce or force employees to vote for a certain candidate or in a certain way; discharge employees for failing to vote for a certain candidate or in a certain way; or display or otherwise distribute any statement intended to coerce employees to vote for a certain candidate or in a certain way.
Texas
Employers may not retaliate against employees for voting a certain way by reducing or threatening to reduce their compensation or benefits.
Utah
The threat or actual infliction of injury or loss to intimidate another person to vote a certain way is forbidden. Additionally, employers may not include in compensation materials any threats or statements intended to influence the political opinions or actions of employees or, within 90 days before a general election, display any notice containing threats to employees depending on election results, including threats to reduce their compensation or conduct layoffs.
Vermont
The use of threats to influence how individuals vote in state elections is prohibited.
Virginia
Political action committees may not use funds obtained through actual or threat of physical force, job discrimination, financial reprisals, or required as a condition of employment. Additionally, the use of threats or bribery to influence how individuals vote is prohibited.
Washington
Employers may not interfere with a voter’s efforts to support or oppose a recall, referendum, or other initiative; discriminate in respect to the terms or conditions of employment against employees or officers because of their support or opposition to a particular candidate, political party, or political activity; or use payroll contributions or salary increases for the purposes of funding political activities or candidates.
West Virginia
Employers may not threaten to reduce employees’ compensation or conduct layoffs depending on election results or otherwise intimidate or use undue influence for purposes of influencing employees’ voting activities. Additionally, political action committees may not use funds obtained through physical force, job discrimination, financial reprisals, or required as a condition of employment. Nor may employers engage in job discrimination, or discriminate with respect to job promotion or transfer, because of an employee’s failure to contribute to the employer or a separate segregated fund.
Wisconsin
Employers may not use threats of discharge or compensation reduction or promise compensation increases to influence voting rights; discriminate against employees who refuse to participate in employer communications about political matters; or display or otherwise circulate communications containing threats to reduce compensation or conduct layoffs depending on election results. Nor may employers discriminate against employees because of their use of lawful products, which can be broadly defined.
Wyoming
The use of threats of harm or loss (financial or otherwise) to coerce individuals to exercise or refrain from exercising their voting rights or participate or refrain from participating in political activities is prohibited.
Act Now to Ensure Compliance
Employers will want to stay informed of the various laws regulating politics in the workplace applicable to the states in which their companies operate and take steps to ensure compliance. Notably, employers should note that some of the state laws described herein may be vulnerable to challenge given the Supreme Court’s decision in Citizens United.
Regardless of whether political speech and activity in your workplace already has caused noticeable workforce fragmentation or sent your human resources and management teams into a frenzy, it is important to develop and implement an action plan to tackle the difficulties posed by this election cycle. The tone and rhetoric of this election cycle promises to keep even the most well-meaning employers on their toes as it is likely to raise rarely-seen employment issues stemming from obscure laws about political expression in the workplace.
A version of this article appeared in the September 2016 issue of Professional Roofing.
