May an Employer Require Employees to Show Up at a Pro-Candidate-X Rally?

I blogged earlier today about whether employers may fire employees based on how they voted (no), and whether employers may urge employees to vote a particular way (generally yes). But may employers require employees to participate in campaign activity, such as by showing up at a rally supporting a particular candidate?

It depends on the state. Many states have statutes that bar employer retaliation based on employee speech or other political activity, and some of those statutes also bar requirements that an employee participate in such activity, though the language is ambiguous:

  1. California and Louisiana ban employers from “[c]ontrolling or directing … the political activities … of employees,” which might be read as banning them from directing that the employee participate in a political rally.
  2. Connecticut bans employers from “disciplin[ing] or discharg[ing]” employees based on the employee’s “exercise … of rights guaranteed by the First Amendment,” which likely includes the right not to participate in a political rally.
  3. Washington bans employees from discriminating against employees for, among other things, “the failure in any way to support or oppose” “a candidate, ballot proposition, political party, or political committee.”

Some states — Massachusetts, Mississippi, Oregon, and Wisconsin — also specifically bar employers from requiring that employees “render any political service” as a condition of employment; showing up at a rally would likely be seen as a “political service.” Here, as a sample, is the text of the Massachusetts statute:

No person employed for compensation shall be under any obligation to contribute to any candidate or political committee, or to render any political service on account of, or as a consequence of, his employment, and such person shall not be removed or otherwise prejudiced for refusing to do so.

These statutes generally apply, I think, both to rallies in support of state candidates and rallies in support of federal candidates. There might also be more statutes than I list here; this is just the result of some quick and dirty searching on my part.

Some of these statutes expressly exclude certain employers whose job it is to engage in politics, such as political parties and some other organizations. And indeed at some point a restriction on the employer may so interfere with the employer’s ability to express its views — whether the employer is General Electric, the Democratic Party, or the ACLU — that it might violate the First Amendment as applied to that particular situation. Thus, for instance, if an employer hires someone to write political press releases expressing its views, it can insist that the employee do so, since letting such employees refuse would substantially burden the employer’s ability to put out such press releases. I expect that courts would draw a sort of “bona fide occupational qualification”-like distinction (already present in some political activity protection statutes), under which employees in certain narrow job categories that involve speaking on the employer’s behalf — or otherwise participating in the employer’s speech — could indeed be required to “render political services.” But this is just my guess; there is very little litigation along these lines under these statutes.