Lawyers Weigh in on Wal-Mart’s Political Intimidation

While the FEC investigates Wal-Mart’s possibly-illegal attempts to influence the votes of its employees, writers at the Legal Times discuss what those mandatory meetings exposed. While obviously making clear how much Wal-Mart fears unionization - and how much its managers exaggerate the impact of Democrats and the Employee Free Choice Act - the meetings also exposed the national need for stronger laws against employee intimidation.

Chained to Office Politics [Legal Times]

Imagine you work for the largest company in town. You live from paycheck to paycheck like a large portion of lower- to middle-wage workers and can’t afford to be without a job for long. Your company has pretty high turnover, and it has a reputation for firing people it labels troublemakers, people who don’t fit into the corporate culture.

Now imagine that at a mandatory work meeting, your supervisor warns you that Congress is considering legislation that will make it easier for unions to come into your company. A union here would be a disaster, the supervisor warns, and would mean layoffs, or even worse, closing down entire locations. Unions are bad news. And just to top it off, if a Democrat gets into the White House, we can be sure that bill in Congress will become the law. So think about that, he says, when you’re in that voting booth.

This speech might make you a little nervous about what your supervisor thinks your political leanings are. You might be very careful about what you say to be sure it can’t be interpreted to support the Democrats, particularly if your company has the reputation of firing people who support unionizing. And since your employer is the biggest in town, you watch what you say no matter where you are. You can’t afford to have anything get back to the company.

Given this, you’re pretty unlikely to read or think about the issues or the election much. If you can’t talk about the issues or the candidates and you can’t be perceived to be involved, what’s the use? You might discourage your family members from getting involved even if they don’t work for the company, just in case their actions put you in a bad light. What’s more, you might not even vote. No one can accuse you of voting Democrat if you don’t vote at all. So while the speech may not make you believe that one candidate is better than another, the effect on your actions will be almost the same as if it had.

If you think this scenario can’t happen, that employers can’t mandate that employees attend meetings where the company suggests to workers they shouldn’t vote a particular way, think again. According to an Aug. 1 story in The Wall Street Journal, this appears to be exactly what Wal-Mart has been doing, and it should be illegal.

When the largest employer in the country speaks, its employees can’t help but be affected. The largest employer in the country—with a work force that represents almost 1 percent of total American employment—has the power to subvert the democratic process, and that shouldn’t be allowed to happen.

MANDATORY MEETINGS

According to the Wall Street Journal story, at mandatory meetings the big box chain held for store managers and department heads across the country this summer, meeting leaders warned participants of the risks of unionization for the company. According to numerous employees who attended these obligatory sessions, the human resource managers running the meetings made it clear that voting for a Democratic president would be tantamount to inviting unions into the store and that unionization could mean fewer jobs.

According to a subsequent Wall Street Journal report based on a digital recording of one meeting, at least one meeting leader also apparently made several inaccurate representations about the consequences of the Employee Free Choice Act, the pro-labor law co-sponsored by the Democratic nominee for president, Sen. Barack Obama of Illinois, that the company has been fighting. Now some labor groups are seeking an investigation of Wal-Mart’s conduct in these meetings.

For its part, Wal-Mart is upfront about its opposition to the Employee Free Choice Act, though a company spokesman told the Journal, “If anyone representing Wal-Mart gave the impression we were telling associates how to vote, they were wrong and acting without approval.”

Of course, keeping unions out of Wal-Mart has been one of the company’s central business commitments for decades. Wal-Mart’s business model—sell a lot and sell it at the lowest possible price—works only if the store’s costs are as low as they can be. The most significant cost in retail is labor. So Wal-Mart needs to spend as little as it can on its employees. This means, among other things, no unions.

NOT ALONE

Of course, the political workplace captive meeting is not peculiar to Wal-Mart. In 2004, the National Association of Manufacturers sought to have employers use their workplaces to hold meetings with their employees to discuss partisan political issues. Employees were urged to act in their employer’s best interest by not voting for unacceptable candidates.

And this type of captive meeting is not limited to political intimidation of employees. Evangelical Christian organizations are offering Christian ministry services for employers to provide to their employees in meetings during work hours. Prayer breakfasts, faith-based training and education, and requests for information about employees’ religious affiliations are increasingly becoming part of the American workplace. And although employees are not forced in the classic sense to attend these functions, employees do feel pressured not to make waves and go with the employer’s program.

A number of companies have been formed to provide employer-sponsored religious services to employees, including Marketplace Chaplains USA, Corporate Chaplains of America, and Workplace Chaplains U.S. According to its Web site, Marketplace Chaplains USA works in 44 states and more than 750 cities, employing more than 2,400 chaplains.

More companies are hiring ministers to “serve” their workers. Some of this may offer benefits akin to a secular employee assistance program, but critics believe that these ministers have another agenda—to convert. And even if the ministers don’t, the explicit employer endorsement of religion, with all the coercive pressure that may bring upon employees, seems clear—particularly if the company’s minister shows up in the workplace to meet with workers on company time.

NOT VOLUNTARY

So what’s the big deal? Can’t employees just choose not to attend these coercive meetings, whether on politics or religion?

In most cases, the answer is no. Although physically employees may walk out of such meetings or not attend, employees risk being fired if they are considered to be insubordinate to their supervisors by failing to listen to them or by not attending these assemblies. Indeed, employees have been lawfully terminated for merely asking questions of their employers during such captive audience meetings or for leaving such meetings without permission.

Consider the hypothetical above about the employee pressured by the largest employer in town. Do employees caught in these scenarios really have much of a choice but to keep their mouths shut?

Not at a company like Wal-Mart, with employee turnover rates of 70 percent in the first year of employment and promotion decisions driven in no small part by whether an employee “fits in” to the corporate culture.

Wal-Mart’s dissemination and enforcement of its particular culture is legendary. As Barbara Ehrenreich described it in her book Nickel and Dimed (2001), the store operates as a “cult of Sam [Walton]” with chants, slogans, and posted principles a regular part of every store. From the morning meeting’s “Wal-Mart cheer” to the temperature controls and TV channels programmed from Bentonville, Ark., for stores all over the country, Wal-Mart’s model is one of uniformity and conformity. The company’s model for growing managers is to bring employees in young and convert them to the “Wal-Mart way.” Speaking out and talking back do not fit with that model. If you plan to stay at Wal-Mart, you go along to get along.

WORKER FREEDOMS

So what can be done? Unfortunately, federal labor law under the National Labor Relations Act or any other law does not currently regulate captive audience meetings.

In the political context, some states have long legislated against allowing employers to discharge employees or to subject them to other forms of coercive pressure as a way to influence their votes in political elections. For instance, employees may have private rights of action under state law if they are discharged or subjected to coercive pressures to influence their votes in a political election in states such as California, Colorado, Connecticut, and Mississippi. But the majority of states have no such legislation on the books.

More states, however, are considering alternative legislation to deal with these issues of employer intimidation in the workplace in the form of Worker Freedom Act legislation pending in numerous state legislatures. According to the AFL-CIO, its proposed model legislation would “give employees the freedom to walk away from political or religious indoctrination meetings—and would bar employers from firing or disciplining workers who choose not to attend or who report unlawful forced meetings.”

One state has already enacted such a law for political and religious speech. New Jersey enacted the Freedom from Employer Intimidation Act of 2006. This legislation makes it unlawful for any employer to force its employees to attend employer-sponsored meetings whose purpose is to discuss the employer’s opinions on religious and political matters.

To prevent the subversion of employees’ right to political and religious autonomy in the workplace, other states should follow New Jersey’s lead and protect workers from being harassed and intimidated by strong-arm tactics used by employers like Wal-Mart.

By enacting laws like the Worker Freedom Act that prohibit employers from firing workers who refuse to attend captive audience meetings about the employer’s political, religious, or union views, states will be helping to ensure both fairer elections and fairer workplaces.

Posted by Alex Goldschmidt on Tuesday, September 09, 2008