From a Magistrate Judge’s Report and Recommendation in Griffin v. N.H. Dep’t of Employment Security (handed down Nov. 16):
For six years prior to May 19, 2009, Griffin worked for the Hospital as a radiology technician. Prior to May 19, Griffin had a conversation with a patient in which he recounted a news story regarding the number of firearms purchases that had occurred in the first quarter of 2009. The patient complained about the conversation, and Linda Nestor, Director of the Radiology Department, contacted the patient on May 19 to investigate. The patient said that Griffin had made remarks about President Obama and had reported that he was stocking up on food and weapons. Nestor did not ask Griffin to provide his side of the story, concluding that she did not need to investigate further because Griffin had made inappropriate comments in the past.
Griffin was fired by the (private) hospital “for making inappropriate remarks to a patient about guns and politics,” and was then denied unemployment compensation by the government agency in charge of unemployment claims because he “was terminated for misconduct.”
Now it’s clear that Griffin’s firing doesn’t violate the First Amendment, because the hospital is a private entity, and thus not bound by the First (or Fourteenth) Amendment. But in a long and well-known line of cases, the Supreme Court held that when an employee is fired because he refuses to do something (e.g., work Saturdays) because of his religious beliefs, a denial of unemployment compensation on the grounds that the firing was “for misconduct” (there, insubordination) presumptively violates the Free Exercise Clause. I think this logic is dicey, but the Court has accepted.
I’ve often wondered whether the same logic would also apply to firings for speech, the subject of a parallel clause of the First Amendment. And in Griffin, the magistrate’s report says “yes”:
Griffin’s claim resembles those arising under the Free Exercise Clause of the First Amendment, involving employees terminated for religious practices conflicting with a private employer’s policy but not otherwise barred by law, who have successfully challenged administrative rulings or state laws denying them unemployment benefits. See, e.g., Hobbie v. Unemp. App. Com’n, 480 U.S. 136, 140–41 (1987) (denying unemployment benefits to Seventh-Day Adventist who was fired because she was unwilling to work on Saturdays impermissibly burdens free exercise of religion); cf. Employment Div. v. Smith, 494 U.S. 872, 890 (1990) (denying unemployment benefits to employees fired for their criminal misconduct in using peyote did not violate Free Exercise clause because state law criminalizing use of peyote passed constitutional muster). The Court has characterized these cases as standing for the proposition that “where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of ‘religious hardship’ without compelling reason.” Employment Div., 494 U.S. at 884 (citation omitted). Lower courts have extended this line of authority to cover claims like Griffin’s asserting that the state violated the First Amendment when it determined that an employee fired for engaging in political speech at work was ineligible for unemployment benefits. See, e.g., De Grego v. Levine, 362 N.Y.S.2d 207, 208–09 (N.Y. App. Div. 1974) (First Amendment barred State from denying unemployment benefits to employee fired for wearing “Impeachment with Honor” button), aff’d on other grounds, 347 N.E.2d 611 (N.Y. 1976).
An interesting case. Note: If you want to offer legal analysis about the case, you should probably make sure you have read Sherbert v. Verner, the source of the Free Exercise Clause doctrine on which the Court relies; as applied to unemployment compensation, Sherbert survives Employment Division v. Smith’s general holding that the Free Exercise Clause isn’t violated by religion-neutral laws of general applicability.
SuperSkeptic says:
What could be more like religion than what politician you love (god-good) or hate (devil-bad)?
Substantive post pending...
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Bryan Gividen says:
I think this holds well in the free speech arena, but I wonder what, if any, effect it might have on actions derived from political convictions. For example, I believe that Saturday’s during election years ought to be spent campaigning for my chosen candidates. Hence, I refuse employment on Saturday’s for that reason. Or, possibly more plausible, an accountant works for a small business that endorses a candidate that the accountant disapproves of. He decides to leave his employment out of political conviction. Would his free speech rights (or maybe right to association) allow him to file for benefits despite leaving suitable employment?
Religious convictions that require non-illegal action can create an exemption; it would seem proper to me that political convictions should hold the same weight. This would parallel the Seeger decision.
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November 19, 2009, 8:14 pmLaura(southernxyl) says:
This is an eye-opener for me b/c I thought that you never can get unemployment benefits if you have been fired for cause. I thought unemployment was strictly for being laid off.
I would have said that Bryan’s hypothetical accountant couldn’t get them, if for no other reason because he voluntarily left his job, but I’ll wait to see what others say.
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November 19, 2009, 8:26 pmSuperSkeptic says:
Professor, could you elaborate on what you find “dicey” about the logic?
It seems to go not as far as shelley v. kramer went (which I perceive to be the outer bounds of this kind of activity — constitutionalizing private activity broadly speaking). I think it may make sense after or in light of Sherbert.
* * *
3 points from Sherbert:
1)
Polygamy is, as I understand, criminalized, no?
2)
I suppose you intstructed us to read Sherbert for this passage, which would preclude needless arguments that unemployment compensation is merely a privilege and not a constitutional right, and therefore the decision in this case is wrong. Whether that’s true or not (my guess of your motive), it’s interesting because the court protects a constitutional right from a condition being tagged-on to something that could be characterized as a “privilege.”
I wish they would apply that logic in the Fourth Amendment context; in particular, I’m thinking of “implied consent” laws for blood and driver’s license privileges. But, as I understand the legal world, constitutions, at times, yield to the exigencies of the day. And, driving licenses remain “privileges” sometimes and “rights” other times. (I’m not going to bother citing that at this time, if you like, I would.)
3)
After dismissing the argument that there might be “some compelling state interest [in] enforc[ing] [] the eligibility provisions of the South Carolina statute [that would] justif[y] the substantial infringement of appellant’s First Amendment right,” the court says:
If only they would apply this kind of logic to the commerce clause. In particular, I’m thinking Wickard, Raich. (I’m dreaming, I realize that.)
I think I may like this logic, Professor.
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November 19, 2009, 9:05 pmDavid Schwartz says:
“Laid off”, “fired for cause” and “voluntarily left your job” can be a distinction without a difference unless you’re very careful to look at pretense. There’s no practical difference, for example, between being fired because you refused to work when asked and quitting because you were told to work a time you were not willing to work.
Determining if a person was “fired for cause” can be a very touchy subject. In the present case (though operating on limited information) I would argue that the claimed reason for firing him was likely pretense and present as evidence their failure to even ask him about the incident.
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November 19, 2009, 10:11 pmDavid Chesler says:
Does it vary by state? My impression is that in Massachusetts (reputed to be generous and protective of labor) anything from being asked to resign to fired for less than gross negligence makes one eligible for UI, including a lot of constructive terminations such as reductions in salary (since you don’t have to accept an offer at a lower salary to maintain eligibility.)
Partial layoffs (Reductions In Force) are often used to prune deadwood: in other words, people can be laid off for cause. People can also fail an official or unofficial probation, and be unhired (it’s nothing specific, but the employer wishes they had never hired the worker in the first place.)
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LarryA says:
I’d think that there is quite a difference. The employer funds unemployment insurance. Firing you is his or her choice, quitting is your choice. You quitting takes away the employer’s options of changing the schedule to accommodate your refusal or imposing a sanction short of termination.
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November 20, 2009, 12:44 amJackson Houser says:
I am not sure that the claimant’s action met the rather strict standard for “misconduct” sufficient to deny unemployment compensation benefits. In most states, it is a commonplace of unemployment compensation law that conduct that might be bad enough to cause an employer to fire an employee isn’t necessarily bad enough to require denial of UC benefits. But let us say that the claimant’s action in this case really did meet the requirements of disqualifying misconduct. That means that the claimant was discharged for what he did, rather than for the specifc content of what he said: Note the almost thrown-away comment at the end of the summary about “inappropriate comments in the past.” What that sounds like is that the claimant was warned not to engage patients in activities beyond those necessary for the claimant to do his job. Having a conversation of the sort recounted is an activity beyond what would be required by the claimant to do his job. So the claimant would be denied UC benefits not for the content of his speech, but for his action in violating a reasonable order of the employer, after a warning. By the way, the citation in the magistrate judge’s order to De Grego v. Levine, from New York, with that ‘affirmed on other grounds’ comment, makes it look like that case isn’t really an instance of First Amendment override of a UC disqualification.
There is a further problem: if the claimant was discharged for disqualifying misconduct, but the denial of benefits is overridden by the First Amendment, then that means that the employer shouldn’t have to bear the consequences of the payment of benefits, right? The employer’s unemployment compensation tax rate shouldn’t go up because benefits were paid to the claimant, assuming New Hampshire has a system like Florida and many others were the UC tax rate depends on variables which include what benefits are paid to former employees who become unemployed for non-disqualifying reasons. Wouldn’t imposing a higher UC tax burden on the employer violate the employer’s First Amendment rights?
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November 20, 2009, 1:18 amAbdul Abulbul Amir says:
Actually, all payroll and employment taxes are paid by the employee, but collected for the state by the employer.
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November 20, 2009, 1:20 amMitchell J. Freedman says:
I wonder what would have been the result if the person was in California and cited Labor Code sections 1101 et seq.?
Notwithstanding those sections, I still believe a company may terminate an employee for an on the job political conversation with a customer, especially when it does not appear the customer was looking for that conversation to occur. But I also don’t think it rises to gross negligence (which I believe is the CA standard for denying u/e benefits) to deny the discharged employee unemployment benefits.
If I was advising the company in CA, I’d say it would be better for the company to document a warning to the employee that on duty political conversations with customers is against policy of the company, and only taking a discharge after a written documentation and acknowledgement of the policy by the employee. Then, you have a true insubordination that gets beyond gross negligence. Just a step, and then it’s free and clear for the employer, and the employee gets his/her due process. Really not so bad, is it?
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November 20, 2009, 2:58 amreadery says:
Firing is an action of a private employer, but denial of unemployment compensation is an action of the state. The state is more limited than the private employer in what types of employee conduct it can consider “cause”, and can’t necessarily take the employer’s word for it.
For example, prior to the Civil Rights act, a private employer could fire an employee for cause for turning out to be of the wrong race. But the government couldn’t necessarily automatically accept that as cause for unemployment compensation decision purposes.
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November 20, 2009, 3:04 amDavid Schwartz says:
The example presumes the employee has the choice of working that time period or quitting. An employer can always say “do X or you are fired”, in that case, there is no difference between the employee not doing X and getting fired or the employee quitting.
An employer can always make a working situation so unbearable that an employee either quits or the employer can claim he fired the employee for cause. You have to look through the pretense to the actual occurence.
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November 20, 2009, 3:14 amsk says:
“I think this logic is dicey, but the Court has accepted.
I’ve often wondered whether the same logic would also apply to firings for speech,”
You’ve often wondered if dicey illogic would apply to a different situation?
If the original logic is dicey, then presumably the extension of that logic is also dicey-in which case, its really not a ‘logical’ question, but rather a political question. In which case, you have been wondering whether a particular judge would choose to extend that argument. In which case, the more reasonable line of argument would be to discuss the particular judge’s political views, and judicial history. Is the judge a democratic or republican appointee? Is the judge a former member of the ACLU? Is the judge actively religious? etc etc.
Sk
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November 20, 2009, 8:44 amSandy MacHoots says:
What confuses me about the case is that there doesn’t appear to be any hospital policy against talking politics with patients, so it’s hard for me to see that a termination over a single conversation, without prior notice or warning, would be a termination for “cause.” The hospital has a right to fire him without cause for any (non-prohibited) reason, including voicing of political views. But unless there’s some express policy that’s been violated, or some prohibition communicated, I see this is a termination without cause, so unemployment should be available. Which appears to be what the appellate body bound.
I have to say I wouldn’t want to go to a hospital where they fire you for expressing political views, but not for stealing drugs or coming to work drunk.
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November 20, 2009, 10:27 amSandy MacHoots says:
FWIW, a Google search shows that the HR director who fired Griffin, Lauri Bolognoni, is a director of a nonprofit called Voices Against Violence in Plymouth, N.H., a group that combats domestic violence. Which may explain her reaction to the gun comment. And her husband Ted appears to be a long-time employee of leftish nonprofits who was a Howard Dean supporter. Which may explain her reaction to the Obama comments.
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November 20, 2009, 10:46 amDilan Esper says:
skeptic:
FYI, the fourth amendment does not permit consent to be implied from some action years before. that is simply what state DMV’s say because they love to make it sound like they are entitled to extract any condition they want before allowing you to drive.
implied consent laws are upheld as a legitimate form of special needs search. but the search is constitutional whether or not they make you sign a ‘consent’ form.
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November 20, 2009, 10:48 amSuzy says:
I agree with Jackson Houser: he’s not being fired for the political content of his speech, but because he is inflicting his harangues on patients who are sitting there waiting for an x-ray or something. It wouldn’t matter if he was singing Obama’s praises or analyzing yesterday’s tragic bank robbery. A certain kind of decorum and context-appropriate speech is required if you’re going to deal with patients who are trying to receive medical care.
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November 20, 2009, 11:17 amLarryA says:
You are presuming that the boss can’t change his or her mind. Firing is still the boss’s decision, quitting still the employee’s. Of course the boss can call the employee in and offer the quit-or-be-fired option, but such is not inevitable in your original statement.
And so do you. I’ve had situations where bosses have made schedules that conflict with my needs. I’ve been lucky that most of them have been willing to listen and compromise so the work gets done and my needs are also met. Of course I’m an employee willing to go an extra mile or two when my employer needs me to, which means they’re usually willing to bend when I need it.
My point is that all boss-employer interactions are not based on the labor union adversary model, where any conflict has to go nuke.
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November 20, 2009, 1:45 pmJim Rose says:
The unemployment case may turn on whether the employee was asked in the past not to talk politics with patients. If there were such a rule that applied to all political persuasions, it could well be insubordination and misconduct to talk politics on the job.
As for “misconduct” that, too, may depend on what the employee’s rights were before the termination. In New York, employees who get civil service hearings, tenure hearings, or arbitrations where they are represented by counsel face res judicata arguments if they are terminated for cause after a hearing.
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November 20, 2009, 1:48 pmBruce Hayden says:
I am not sure if you can say that the firing was not politically motivated from the decision, esp. considering the apparent politics of the HR director and her husband. I think that all we really know is that he was fired without giving him a chance to respond, and, likely before much investigation. Maybe you are right that he would have been fired for singing the praises of President Obama. But I didn’t see that in the opinion.
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November 20, 2009, 1:51 pmShelbyC says:
That doesn’t matter as far as the first amendment issue goes, correct? Denying unemployemnt for being fired for violating a no political comments policy would raise the same 1A issues as being denied for violating, say, a lefty comments only policy. Although I agree with EV that there are problems with the underlying principle.
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November 20, 2009, 7:44 pmreadery says:
The decision was whether or not to dismiss the complaint for failure to state a claim.
The complaint is written by the employee’s lawyer and tells the employee’s side of the story in the most favorable possible light.
With no evidence yet heard, we don’t have any context explaining when, where, or how the employee said the things he said. We don’t know if it involves an occassional quiet conversation in the employee lounge or loud, repeated, and annoying harangues of patients in the wards.
The decision only said that the employee might possibly have a case, not that he does for sure.
Depending on the evidence to be produced in later proceedings, the hospital might still win. The magistrate never said there is a right to speak whenever one wants to whomever one wants in a manner maximally disruptive of the hospital’s operations.
Even in a religion case, a person is expected to give the hospital some notice and try to work things out in a minimally disruptive way, and there has to be some regularity to the practice. There’s no license to suddenly walk out of an operating room in the middle of surgery because one suddenly decides one is going to observe the sabbath that day.
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November 21, 2009, 7:39 pmJackson Houser says:
Readery is correct. My post was written before I read the magistrate judge’s recommended decision, so I apologize for going off on a tangent. The New Hampshire UC upper level authority did rule that the claimant’s conduct was not disqualifying, so he was entitled to UC benefits. That rendered much of the Federal lawsuit moot, but the magistrate had to imagine if any claim might be able to go forward. And a little imagination showed that maybe it could. That was sufficient. It seems clear that the magistrate expects that the remaining defendant–the hearing officer–will have “quasi-judicial immunity” but that is a matter for slightly later in the suit.
Slightly more on topic, I think it will be very rare, as a practical matter, that a case would ever properly get to the point of a Free Speech First Amendment override of a disqualification, because, as in this case, if an employee is discharged purely for the content of speech in the workplace, it will probably be considered not disqualifying misconduct, and if the discharge really is for disqualifying misconduct, then the problem is likely to be for more than just the content of one instance of speech.
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November 21, 2009, 11:20 pm