Barack Romney owns a timber and building products business. Earlier this month he mailed his employees a packet suggesting that many of the company’s more than 50,000 U.S. employees and contractors may suffer consequences of higher gasoline prices, runaway inflation, and other ills if we elect a candidate who want to “spend money on subsidies, put regulatory burdens on businesses, delay construction projects, and hinder free trade.”

Barack’s brother Mitt Obama, who works for the Environmental Protection Agency, told his employees that “if the wrong party gains control of Congress then their federal agency could be facing a 15% budget cut and furloughs. If the right party takes control of Congress then we would be looking at a flat budget.” Can the two brothers legally do that?

Companies Can Advise Employees How to Vote.

Yes, Barack, who owns his own company, can communicate his concerns to his company employees. In its ruling on the 2010 Citizens United case, the U.S. Supreme Court held that political spending is a form of protected speech under the First Amendment and, in so ruling, overturned certain limits on political contributions. The ruling nullified Federal Election Commission rules that kept employers or unions from communicating their political opinions to their employees and held that the government may not keep corporations or unions from spending money to support or denounce individual candidates in elections. While corporations and unions may not give money directly to campaigns, they may seek to persuade the voting public through other means. However, Ohio employers take note of their state statute prohibiting employers from printing or posting any notice “that if any particular candidate is elected or defeated work in the establishment will cease in whole or in part.”

Federal Agencies May Not Advise Employees How to Vote.

On the other hand, No, Mitt, who works for the government, may not communicate his concerns to his federal agency employees. The Hatch Act restricts the political activities of governmental employees who work in connection with programs financed in whole or in part by federal loans or grants, including programs receiving financial assistance from the federal government. Generally speaking an agency employee under the Hatch Act may not engage in political activity while on duty, while wearing an official Government uniform or identifying insignia, while using a Government vehicle, while using Government property and so forth.

Tilting the Scales in Your Favor.

If you are not a federal agency affected by the Hatch Act, and you wish to communicate information about the upcoming election to your employees, we urge you to consider:

• Weigh the Pros and Cons of Your Message – consider the impact of your message and the possible repercussions to your company’s culture
• Inform But Don’t Pressure – clearly state that the company opinion is just that, and that there is no intent to pressure employees to vote one way or the other.
• Be Careful About the Message – while the company’s ownership has certain First Amendment rights, the First Amendment rights do not eliminate the “usual” company employment liabilities for claims of harassment based upon race, gender, sexual orientation, etc.
• Company Harassment Policy – if political discourse in your company gets heated, consider invoking your harassment policy to remind employees of the types of behavior that are prohibited and where they can go with their complaints. If you don’t have a clearly defined company harassment policy, talk to your lawyer and consider getting one.
• Promote Civil Discourse – make it clear in advance that gloating, victory dances or otherwise “spiking the ball in the end zone” are not acceptable. If there has been particularly lively discourse in your workplace, after the election you may want to say, “Thanks to you all for your participation in the political process, and your efforts to be civil with co-workers who may not agree with your views. Please continue your good work now that the election is over.”