|Addressing Political Captive Audience Workplace Meetings in the Post-Citizens United Environment|
|Paul M. Secunda, Saturday, 15 May 2010 [View as PDF]|
Citizens United has wrought widespread changes in the election law landscape. Yet, a lesser-known consequence of this watershed case might have a significant impact in the workplace: it may permit employers to hold political captive audience workplace meetings with their employees. Under Citizens United’s robust conception of corporate political speech, employers may now be able to compel their employees to listen to their political views at such meetings on pain of termination.
To eliminate this danger while remaining consistent with the First Amendment framework for election law post-Citizens United, this Essay urges Congress to consider language similar to that enacted by the Oregon Worker Freedom Act (S.B. 519), which became effective January 1, 2010. S.B. 519 prohibits termination of employees for refusing to attend mandatory political, labor, or religious meetings held by their employers. Enacting a federal law like the Oregon bill, which would protect employees from being terminated, disciplined, or otherwise disadvantaged for choosing not to be subjected to indoctrination meetings, would effectively address this problem and would constitute permissible employment standards legislation.
It would also not run afoul of the First Amendment speech rights of employers under Citizens United. Employers would still be able to communicate their views about political candidates and parties to their employees as the First Amendment now contemplates, but they would not be able to force them to listen to such speeches at the risk of losing their jobs or other benefits of employment.
I. Election Law Pre-Citizens United
Prior to Citizens United, the 1971 Federal Election Campaign Act (FECA), as amended in 1976, provided that corporations were permitted unlimited communication with and solicitation of shareholders and executive and administrative personnel (the corporation’s “restricted class”). Rank-and-file employees, on the other hand, could be solicited for corporate Political Action Committees (PACs) only twice a year (originally pegged to primary and general election seasons), only by mail sent to their home addresses, and only through an accounting system that made it impossible for management to know which employees did or did not contribute. Partisan political communication to rank-and-file employees, moreover, was completely prohibited.
Now, post-Citizens United, express advocacy outside a corporation’s restricted class is no longer restricted. Justice Kennedy, writing for the Court, held: “We return to the principle . . . that the Government may not suppress political speech on the basis of the speaker’s corporate identity. No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations.” Most commentary has focused on what this might mean for corporate and union campaign contributions during future federal elections. But when Citizens United invalidated 2 U.S.C. § 441b(b)(2)(A), it also permitted corporations to freely use their treasury funds to advocate for candidates and political parties to their rank-and-file employees.
In the absence of the FECA prohibition, no other federal law exists that prevents corporations from requiring, on pain of termination, that employees attend one-sided partisan speeches, rallies, videos, or other events that advocate the election of specific candidates or parties. Nor is there any law that prohibits corporations from requiring that supervisors engage their subordinates in express advocacy conversations during work time and requiring that employees participate in such conversations. Although federal law does still prevent employers from issuing explicit or implicit threats against employees who vote for the “wrong” candidate, short of that, nothing prohibits employers from requiring employees to participate in one-sided political propaganda events. There is no requirement that opposing candidates be offered equal time, or even that employees themselves be permitted to ask questions or voice their own opinions.
II. Use of Captive Audience Meetings for Political Speech
Already, American employers are increasingly using the captive audience technique to force their employees to learn about the employer’s political and religious views. During these sessions, employees may be forced, at the risk of losing their jobs, to listen to their employer’s perspective on the latest political and religious issues of the day.
For instance, during the presidential election of 2004, some alleged that the United States Chamber of Commerce and the National Association of Manufacturers sought to have employers use their workplaces to hold meetings with their employees to “educate” them on partisan political issues. Employees were urged to act in their employer’s best interest by not voting for unacceptable candidates and specifically, to vote for George W. Bush for president.
More recently, in Wal-Mart Stores, Inc., the FEC split 3-3 on whether Wal-Mart violated then-FEC law during store manager and department supervisor meetings that utilized corporate resources for express political advocacy directed at rank-and-file employees. Specifically, the complaint alleged that Wal-Mart conducted mandatory meetings with its store managers and supervisors at which the corporation expressed opposition to the pending Employee Free Choice Act and stated that voting for then-Senator Obama and other Democrats would result in its passage.
As one commentator observed, attempts by employers to influence the political activities of their employees may be extremely effective because “[p]eople need their jobs, and many will sacrifice their rights as citizens to continue to provide for themselves and their families. Consequently, an employer that tries to use its financial muscle to control employees’ political behavior will often succeed.” Even before Citizens United, a need existed to protect employees against political intimidation and pressure from their employers. After Citizens United, this type of meeting will be lawful as a legal campaign expenditure.
In addition to political speeches, more companies are hiring ministers to serve their workers. Evangelical Christian organizations are increasingly offering ministry services for employers to provide to their employees during work hours. Prayer breakfasts, faith-based training and education, and requests for information about employees’ religious affiliations are becoming a larger part of the American workplace. Although voluntary religious participation in the private workplace may not be objectionable, power disparities in the employment relationship suggest that some of this employee religious participation may not be a matter of free choice.
III. Lessons from Labor Law
The use of captive audience meetings in private-sector union campaigns provides some insight into how Citizens United might lead to an increase in the number of mandatory political and religious meetings held by employers. Private-sector employers in the United States routinely hold mandatory workplace meetings during union organization campaigns to express anti-union views to their employees. Such captive audience speech occurs when employers require supervisors to convey management’s anti-union opinions to their subordinates or when employers require employees to listen to the employer’s anti-union message at mandatory meetings during work time.
In conversations with supervisors, employees risk being fired for insubordination if they refuse to listen to partisan advocacy; in the case of larger group meetings, employees may be terminated for refusing to attend anti-union assemblies. Indeed, employees can be lawfully terminated for merely asking questions of their employers during such a meeting or for leaving such meetings without permission. One former chairman of the National Labor Relations Board characterized this power of an employer to monopolize its workplace for anti-union speeches as “an extremely devastating technique in organizational campaigns.” It is perhaps no surprise, then, that a recent study indicated that employees were subject to nearly eleven captive audience meetings during an average union campaign.
Under both the First Amendment and the National Labor Relations Act (NLRA), these captive audience techniques are considered lawful. The Supreme Court has long interpreted the NLRA as permitting employers to hold captive audience meetings with their employees on labor-oriented issues.
IV. Possible Legal Response to Political Captive Audience Meetings
Recently, employee interest groups have sought at the state level to prohibit employers from holding captive audience meetings concerning political or religious speech. Just this January, the state of Oregon adopted the Worker Freedom Act (S.B. 519). S.B. 519 was enacted to address the employer practice of holding mandatory meetings at work, lecturing employees on political or religious matters outside the scope of their employment, and threatening employees with penalties or job loss if they wished to leave such meetings.
Under S.B. 519, if an employer fires or penalizes an employee for declining to attend such a meeting, the employee may bring an action against the employer for reinstatement, back pay, and other forms of relief. The bill’s effect is limited, however. It does not restrict an employer’s right to offer meetings or other communications on political or religious matters, as long as “attendance or participation is strictly voluntary,” and it does not limit an employer’s right to conduct electioneering in the workplace unless employment is conditioned upon attendance at the meeting.
Although this law is currently being challenged in federal court by the Chamber of Commerce on First Amendment and NLRA preemption grounds, the law rests on solid First Amendment foundations, and, of course, a federal enactment would not be subjected to NLRA preemption.
Therefore, Congress should enact “Federal Worker Freedom Act” provisions, like those promulgated by Oregon, to prohibit employers from engaging in this sort of mandatory political indoctrination of their employees. Indeed, any bill responding to Citizens United should uphold the principle that employees cannot be forced, as a condition of employment, to listen to partisan political speech or to participate in partisan political conversations.
The need for this type of legislative response is based on the longstanding recognition that employers’ speech carries a different weight than that of any other participant in political debates, and that the law must be particularly careful to guard employee-voters against the undue influence of their employers. For instance, in the government employment context, the Hatch Act and its state law analogues restrict public employees’ political activities. Under the Hatch Act Reform Amendments of 1993, although federal employees can now more actively participate in political campaigns, they are still not permitted to run for public office or engage in political activity during work. One of the reasons for these laws is the inherent potential for coercion in employer-employee relationships that cannot simply be undone by prohibiting explicit or implicit threats or discrimination. But more importantly, both the Hatch Act and my proposed “Federal Worker Freedom Act” recognize that it is in the best interest of all involved to keep political discussions and partisanship out of the public and private workplace.
V. The Lawfulness of the Proposed Federal Worker Freedom Legislation
Because Federal Worker Freedom Act legislation would not focus on employer speech, but merely the conduct of compelling employees to listen to employer speech on pain of termination, it qualifies as a regulation of conduct rather than as an impermissible content-based regulation on speech. Moreover, federal courts have long recognized that the government may protect a listener’s interest in avoiding unwanted communication. Even if a court were to construe captive audience meetings as employer “speech,” the restrictions would be permissible as “time, place, or manner” regulations. Moreover, these restrictions are appropriately content neutral, and such a law would also be valid under the Court’s captive audience doctrines.
Congress is also well within its power to protect workers from being harassed and intimidated by employers at work through political captive audience meetings as a minimal working condition. Congress should be able to enact laws that prohibit employers from firing workers who refuse to attend captive audience meetings about the employer’s political views on candidates or parties. Indeed, such minimum conditions have been enacted in numerous other areas of labor and employment law, including antidiscrimination law, wage and hour law, and occupational safety and health law under Congress’s Commerce Clause Power. All such laws have been consistently upheld.
Moreover, the federal government already provides criminal sanctions against anyone who
A few states have also legislated in the political election context against allowing employers to discharge employees or to subject them to other forms of coercive pressure as a way to influence their votes in political elections. For instance, employees have private rights of action under state law if they are discharged or subjected to coercive pressures to influence them in the political election context.
Yet, these federal and state statutes prohibiting retaliation for voting against an employer’s preferred candidate are not sufficient to address the effects of coerced employee attendance at partisan political events. Congress should use the Oregon model to prohibit employers from taking advantage of the impact of Citizens United.
The key to the constitutionality of this proposed “Federal Worker Freedom Act” is that it would not regulate employer political speech in any manner. Instead, it would merely regulate employer conduct that compels employees to listen to employer political speech and intimidates them into participating in partisan political events. Congress’s interest here, in protecting the employment of its citizens and the freedom of conscience of its voters, is not related to the suppression of anyone’s expression. Indeed, Congress has a compelling interest in enacting that protection in light of the effect of Citizens United, which will allow virtually unlimited campaigning in the workplace by employers, under highly coercive circumstances. Congress’s historical sensitivity to employer intimidation of employees, both express and implicit, should therefore inform its response to this landmark decision.
Paul M. Secunda is an Associate Professor of Law, Marquette University Law School. The author would like to thank Gordon Lafer, David Rosenfeld, and Ben Sachs for their invaluable contributions to this Essay. All errors or omissions are the author’s alone.
Preferred citation: Paul M. Secunda, Addressing Political Captive Audience Workplace Meetings in the Post-Citizens United Environment, 120 Yale. L.J. Online 17 (2010), http://yalelawjournal.org/2010/5/15/secunda.html.