A recent complaint filed with the Federal Election Commission against an Ohio company, Murray Energy, alleging that its senior executive illegally coerced employees to contribute to the company’s political action committee is garnering a fair amount of attention.  It’s not unusual to see allegations of employer coercion emerge in the last weeks before an election.  While many such complaints are frivolous, this is indeed the time of year when employers occasionally push employees a bit too hard to vote a certain way or to make political contributions.  This happens every election cycle.

Federal law prohibits employers from coercing federal political contributions from employees.  For example, under FEC regulations, a corporation cannot facilitate the making of federal contributions by means of “coercion, such as the threat of a detrimental job action, the threat of any other financial reprisal, or the threat of force, to urge any individual to make a contribution or engage in fundraising activities on behalf of a candidate or political committee.”  Importantly, and less well known, a handful of states also have labor laws that prohibit an employer from pressuring employees to engage in political activity. 

But there is often a fine line between encouraging employees to participate in the political process on the one hand and requiring them to do so on the other. 

Recently, we have seen several very public allegations of employer coercion, including the allegations made against Murray Energy.  The FEC recently dismissed a case involving alleged coercion by the United Public Workers labor union.  Whether a particular communication to employees crosses the line is a very fact-specific inquiry, and companies should seek legal advice before conducting campaigns to encourage employees to support the company’s favored candidates.  There are many ways in which an employer can legally encourage employees to support specific candidates, but FEC regulations still on their face restrict such communications by corporations and labor organizations if they are directed to all employees.

Navigating state labor laws governing political activity can be especially tricky.  Plaintiffs’ lawyers in the employment law bar are very aware of the relevant federal election laws and state labor laws, and some look for opportunities to use allegations of political coercion for bargaining leverage.  The more sophisticated plaintiffs’ lawyers will ask employees who seek their counsel even on unrelated employment grievances whether they have ever been pressured to make a PAC or political contribution, or to vote a certain way.  While it is rare for coercion of political activity to be the sole basis for an employment litigation, it is becoming more common for political coercion to be added to the mix both to create an additional legal claim and to raise the specter of adverse publicity for the company.

It’s typically in these last weeks of the election when passions flare, judgment wanes, and slip ups occur.  Now is a good time for in-house counsel and government affairs professionals  to take an especially hard look at internal and external communications by their companies regarding the election.

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Photo of Robert Kelner Robert Kelner

Robert Kelner is the chair of Covington’s Election and Political Law Practice Group. Mr. Kelner provides political law compliance advice to a wide range of corporate and political clients.  His compliance practice focuses on federal and state campaign finance, lobbying disclosure, pay to…

Robert Kelner is the chair of Covington’s Election and Political Law Practice Group. Mr. Kelner provides political law compliance advice to a wide range of corporate and political clients.  His compliance practice focuses on federal and state campaign finance, lobbying disclosure, pay to play, and government ethics laws, as well as legal ethics rules.  His expertise includes the Federal Election Campaign Act, Lobbying Disclosure Act, Ethics in Government Act, Foreign Agents Registration Act, and Foreign Corrupt Practices Act.  He is also a leading authority on the arcane rules governing political contributions by municipal securities dealers, investment advisers, hedge funds, and private equity funds.  Mr. Kelner advises Presidential political appointees on the complex process of being vetted and confirmed for such appointments.

In addition, he regularly advises corporations and corporate executives on instituting political law compliance programs.  He conducts compliance training for senior corporate executives and lobbyists.  He has extensive experience conducting corporate internal investigations concerning campaign finance and lobbying law compliance, as well as other corporate compliance matters.  Mr. Kelner regularly defends clients in investigations by the Federal Election Commission, the U.S. Department of Justice, the U.S. House & Senate Ethics Committees, the House Oversight & Government Reform Committee, the House & Senate Judiciary Committees, the House Energy & Commerce Committee and its Subcommittee on Oversight & Investigations, the Senate Finance Committee, the Senate Special Committee on Aging, the Senate Permanent Subcommittee on Investigations, the Senate Health, Education, Labor, and Pensions Committee, and other congressional committees.  He has prepared numerous CEOs and corporate executives for testimony before congressional investigation panels, and he regularly leads the Practicing Law Institute’s training program on congressional investigations for in-house lawyers.  He also defends clients in Lobbying Disclosure Act audits by the GAO and enforcement actions and audits by state election and lobbying enforcement agencies.

Mr. Kelner has appeared as a commentator on political law matters on The PBS News Hour, CNBC, Fox News, and NPR, and he has been quoted in the New York Times, Washington Post, Wall Street Journal, Legal Times, Washington Times, Roll Call, The Hill, Politico, USA Today, Financial Times, and other publications.