It happened. Yesterday, a Las Vegas business owner called in to a radio program to report that he had fired 22 employees because of President Obama’s reelection. The caller explained: “I never tell them which way to vote. I believe in the free system we have, I believe in the right to choose who they want to be president, but . . . I can’t wait around anymore, I have to be proactive.”
In the past several weeks, there’s been some discussion in the blogosphere over whether it is unlawful for an employer to attempt to influence employee voting choice by threatening adverse employment actions over the results of an election. In October, billionaire casino mogul Sheldon Adelson was criticized for instructing casino managers to distribute an “issues guide” to employees that suggested that the President’s positions on taxes, health care, and energy policy would threaten jobs while Mitt Romney’s positions on these same issues would “lead to working-class prosperity.” The Koch brothers similarly distributed materials threatening Georgia Pacific employees’ job security if Obama was reelected.
Are politically-motivated adverse employment actions ever legitimate? Where's the line between a reasonable business decision and political motivation? How would plaintiffs ever prove that impermissible considerations went into the decision?
It remains to be seen whether mass layoffs like the one in Las Vegas will be contested in court. The law on most of these types of employer communications is inconsistent and untested, so it’s interesting to consider (and would make a great student law review topic (hint hint)).