[author: Jodi Frankel]

This post was contributed by Eric N. Athey, Esq., a Member in McNees Wallace & Nurick LLC's Labor and Employment Law Group.

Mitt Romney recently drew criticism for commenting to the National Federation for Independent Business (NFIB) that employers should weigh in on the upcoming election when speaking to employees. Specifically, Romney told NFIB members: "I hope you make it very clear to your employees what you believe is in the best interest of your enterprise and therefore their job and their future in the upcoming elections." Romney went on to say that there is "[n]othing illegal about you talking to your employees about what you believe is best for the business, because I think that will figure into their election decision, their voting decision and of course doing that with your family and your kids as well." These comments likely had many HR professionals across the country asking, "Can employers really do that?"

Federal election laws prohibit many types of voter intimidation but do not prohibit employers from expressing their political opinions in the workplace. When it comes to employers, however, the line between political expression and employee intimidation can be blurred. An obscure Pennsylvania state law addresses this issue and makes it a crime for "any person or corporation" to intimidate voters or to otherwise interfere with the "free exercise of the elective franchise." Violations of the law can trigger a penalty of up to $5000 and imprisonment for up to two years. Given the severity of these penalties, employers who are inclined to stump for a candidate in the workplace need to be careful.

The state law prohibits several types of conduct:

1. The use or threat to use any force or restraint, or any other manner of intimidation or coercion upon any person in order to compel the person to vote a certain way or to refrain from voting;
2. The use of any "forcible or fraudulent device or contrivance" to interfere with any individual's vote;
3. The payment of wages in "pay envelopes" which contain or on which is written any political motto, statement or "argument containing threats….intended….to influence the political opinions of employees"; and
4. Displaying in the workplace, within 90 days of any election or primary, any "handbill or placard" threatening that if a particular candidate is elected all or some of the work in the establishment will cease, wages will be reduced or similar threats.

Most employers have the sense to steer far clear of these prohibitions. However, any employer that brings politics to work must remember that their commentary will be subject to varying interpretations by employees. An employer's political commentary may be perceived as threatening to some employees, though no threat was intended. To use Romney's example, merely saying that a particular candidate is better for business would pose no problem at all under Pennsylvania law. However, saying that the company will shut its doors if another candidate is elected, may well cross the line.  

The main point is that an employer is free to openly support a candidate. Displaying signs with a candidate's name should not be perceived by anyone as threatening or intimidating. However, if an employer feels compelled to address employees directly, it is important to consider the audience and the restrictions imposed by state law. Like the political candidates themselves, employers who want to give their own campaign speech should confer with their consultants (i.e., HR and counsel) before stepping up to the podium.