Support your boss's political cause -- or else?
Pittsburgh lawyer James H. Logan defended a Nationwide Insurance employee who was fired because he would not join in a lobbying campaign by the insurer.
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With election season under way, pressure to join lobbying efforts -- via social media, online petitions, email and more time-tested sources -- is mounting. Employers and employees would be wise to study up on their rights and responsibilities with regard to lobbying in the workplace.
• Does a private entity have a right to ask employees to join the CEO's favorite political cause?
• May the boss penalize employees who refuse to comply with such a request?
The answer is not always straightforward.
"If I were an employer, I'd argue there is no public policy in Pennsylvania that precludes a private employer from asking workers to participate, because no public policy governs the private speech of employers," said Sam J. Cordes, a veteran employment lawyer in Pittsburgh.
Public workers, on the other hand, enjoy certain protections in the workplace that private, nonunion employees do not always share. One such liberty is a general right to free speech. If the boss is Uncle Sam -- or Governor Tom or Mayor Luke -- employees may speak their minds under the First Amendment, and the boss cannot legally fire them for it.
However, a private employer could presumably dismiss a staff member for doing the same thing.
The grounds? Insubordination.
In the broadest sense, the First Amendment does not cover free speech in the private workplace, but rather in a civic setting. But there are exceptions.
In a landmark 1983 decision, the 3rd U.S. Circuit Court of Appeals overturned a lower court ruling, finding that a seasoned manager was wrongfully discharged from his company for refusing to engage in his employer's lobbying effort.
A district claims manager for Nationwide Insurance named John Novosel had written a memo voicing his disagreement with the company's political stance when his boss encouraged staff to join a campaign to pass a no-fault insurance measure in Pennsylvania's House of Representatives.
The manager's Pittsburgh attorney, James H. Logan, argued that firing an employee for nonparticipation in political lobbying was impermissible because it infringed on Mr. Novosel's First Amendment rights. In other words, an employee had a free speech right not to participate in the lobbying campaign.
The plaintiff, who had no record of any demerits in nearly 16 years at the corporation, claimed he was fired for his political opinions. The appellate court ruling drew on public employees' right to speak out or choose not to speak out on political matters. The court found that management's insistence that Mr. Novosel join the lobbying effort violated federal law -- namely, Mr. Novosel's constitutional right to remain silent. The court said Nationwide was retaliating when it fired a perfectly fine employee for not joining the fold.
An employer may encourage workers to vote for a certain issue or support a particular candidate or party, but only those employees in a restricted class, like stockholders, executives, administrative personnel and salaried employees with managerial responsibilities, said David J. Porter, a partner at Buchanan Ingersoll & Rooney, whose clients include Fortune 100 companies and smaller establishments.
The boss cannot request political action from lower level employees who are not part of the restricted class.
Technically, the Novosel case secured Pennsylvania employees' right to speak or not to speak, to support or not support a particular candidate or cause. Private employers could not fire individuals who chose to not support speech-related actions. In essence, the ruling found that it violated public policy to allow an employer to punish somebody for speech, said Mr. Cordes.
"However, lots of courts have declined to follow [the ruling]. Tons of cases are calling it into doubt," he said.
Since the 1983 ruling, the state Supreme Court has upheld the right to free speech for state workers, but in many cases the high court has allowed employers to limit the private speech of their employees.
"The [Pennsylvania] courts are being very narrow. The notion is that if we give employees more rights than some other states, that employers will move their businesses to the other states," Mr. Cordes said.
Mr. Logan, the Downtown attorney who argued for Mr. Novosel in the precedent-setting case, said the courts were beginning to question the decision rendered in Novosel v. Nationwide Insurance Company.
"Some appellate decisions since that time have indicated that Novosel was an aberration and was not good law," he said.
And yet, the decision has held for 28 years, and is often a reference point in the absence of actual statutes on the matter.
In the sphere of private employers, "you're not going to find a statute that says a private employee has a right to say what he or she wants to say," Mr. Cordes said.
An exception would be if the employer asked workers to take action that an employee construed as discriminatory against a gender, religion, race or nationality. The Americans with Disabilities Act and Occupational Safety and Health Administration statutes also protect private workers.
Despite the court's narrow take, the legal approach taken by Mr. Logan in Novosel appears in law school syllabi around the country to this day.
"The circuit court bought my argument that it would be abhorrent to make somebody vote a certain way for president or another electoral position, it would go against what we stand for or to make somebody join a party. How would you draw the line and say someone urged to support his employer's lobbying efforts should be fired for not doing it?
"That was what was scary to private employers," said Mr. Logan, who has run a boutique employment law firm with this wife for more than 40 years. "The Pennsylvania courts ... in some cases, they pay lip service to the concept in Novosel. In other cases, they say it doesn't apply [and] it should be applied very narrowly. The Pennsylvania courts have been reluctant to expand it because it might open the floodgates to litigation of all types. It's been a slow process of getting them to change their minds."
First Published May 23, 2011 12:00 am