Wednesday, March 5, 2014
Thank you to the Workplace Prof Bloggers for inviting me back, and special thanks to Paul Secunda for his incredible work on this blog. Paul and the rest of the team have been an invaluable source of information about labor and employment law developments and scholarship. The virtual community that Paul helped to build here does a wonderful job of making newcomers feel immediately welcome. Thank you, Paul!
For my first post, I want to raise an issue that I have been pondering in connection with last week's Citizens United symposium at Stetson: employer attempts to persuade employees to vote for certain candidates. Several such attempts were reported in the last presidential campaign, and they raise questions about voter coercion. Although state and federal statutes (mostly criminal) prohibit threatening or intimidating voters, many consider them ineffective. Shortly after Citizens United, Paul argued that states should follow Oregon's lead by enacting statutes that protect employees from termination or discipline for refusing to attend mandatory political meetings. Elsewhere, Bruce Ackerman and Ian Ayres have argued that the Gissel Packing standard for distinguishing protected employer speech from unprotected coercion in union elections should be imported, by federal or state legislation, into the political election context. Eugene Volokh appears to agree that Gissel Packing is the right standard for political elections. Gissel Packing generally permits employers to predict an election's consequences when speaking to employees only if (1) the employer points to "demonstrably probable consequences" based on objective fact and (2) those consequences are beyond the employer's control.
It strikes me that attempts to import Gissel Packing into political elections are misguided. The Supreme Court, in Gissel Packing itself, identified important differences between union and political elections that might justify different standards. The Second Circuit, in a similar context, rejected an analogy to political elections, noting the "more intimate relationship" between employees and candidates (union vs. employer) in union elections, and the need for "extra breathing space" in political debates. Also, the Gissel Packing standard is less workable for political elections; what counts as a "demonstrably probable consequence" of a presidential election? Moreover, any attempt to import Gissel Packing into political elections might spur the Court to reconsider Gissel Packing itself, given the Court's more recent First Amendment jurisprudence.
Perhaps deterrence through civil tort remedies is a better approach? In Kunkle v. Q-Mark, Inc., a federal court recognized a wrongful discharge claim based on the clear public policy found in criminal statutes prohibiting voter intimidation. The employee/plaintiff alleged that her supervisor threatened to fire Obama supporters if Obama were re-elected, and further alleged that the supervisor engaged employees in conversations aimed at uncovering political affiliations. The day after the election, plaintiff stated at work that she had voted a "straight democratic ticket." Two days later she was fired. The case settled after the court denied defendants' motion for judgment on the pleadings.
There will often be problems of proof (secret ballots) and questions about whether the legislature has already supplied adequate remedies. But deterrence through a civil wrongful discharge remedy might nonetheless be preferable to the Gissel Packing approach, which seems both unlikely to succeed and risky.