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.

Suzy: 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.

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.

Suzy: 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.

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.

David Schwartz: 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.

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.

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 occurrence.

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.

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.

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.

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

LarryA:
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.

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.

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.

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?

The employer funds unemployment insurance.

Actually, all payroll and employment taxes are paid by the employee, but collected for the state by the employer.

David Schwartz: 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.

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.

This post was mentioned on Twitter by mglickman: First Amendment Violation in Denying Private Employee Unemployment Compensation When Fired for Speech? http://bit.ly/MZDXG via Volokh…

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.)

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.

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)

The door of the Free Exercise Clause stands tightly closed against any governmental regulation of religious beliefs as such, Cantwell v. Connecticut, 310 U.S. 296, 303 . Government may neither compel affirmation of a repugnant belief, Torcaso v. Watkins, 367 U.S. 488 ; nor penalize or discriminate against individuals or groups because they hold religious views abhorrent to the authorities, Fowler v. Rhode Island, 345 U.S. 67 (emphasis added.)

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.”

Nor may the South Carolina court’s construction of the statute be saved from constitutional infirmity on the ground that unemployment compensation benefits are not appellant’s “right” but merely a “privilege.” It is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege. 6 American [374 U.S. 398, 405] Communications Assn. v. Douds, 339 U.S. 382, 390 ; Wieman v. Updegraff, 344 U.S. 183, 191 -192; Hannegan v. Esquire, Inc., 327 U.S. 146, 155 -156. For example, in Flemming v. Nestor, 363 U.S. 603, 611 , the Court recognized with respect to Federal Social Security benefits that “[t]he interest of a covered employee under the Act is of sufficient substance to fall within the protection from arbitrary governmental action afforded by the Due Process Clause.” In Speiser v. Randall, 357 U.S. 513 , we emphasized that conditions upon public benefits cannot be sustained if they so operate, whatever their purpose, as to inhibit or deter the exercise of First Amendment freedoms. We there struck down a condition which limited the availability of a tax exemption to those members of the exempted class who affirmed their loyalty to the state government granting the exemption. While the State was surely under no obligation to afford such an exemption, we held that the imposition of such a condition upon even a gratuitous benefit inevitably deterred or discouraged the exercise of First Amendment rights of expression and thereby threatened to “produce a result which the State could not command directly.” 357 U.S., [374 U.S. 398, 406] at 526. “To deny an exemption to claimants who engage in certain forms of speech is in effect to penalize them for such speech.” Id., at 518. Likewise, to condition the availability of benefits upon this appellant’s willingness to violate a cardinal principle of her religious faith effectively penalizes the free exercise of her constitutional liberties. (emphasis added.)

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:

Even if consideration of such evidence is not foreclosed by the prohibition against judicial inquiry into the truth or falsity of religious beliefs, United States v. Ballard, 322 U.S. 78 – a question as to which we intimate no view since it is not before us – it is highly doubtful whether such evidence would be sufficient to warrant a substantial infringement of religious liberties. For even if the possibility of spurious claims did threaten to dilute the fund and disrupt the scheduling of work, it would plainly be incumbent upon the appellees to demonstrate that no alternative forms of regulation would combat such abuses without infringing First Amendment rights. 7 Cf. Shelton v. Tucker, 364 U.S. 479 , [374 U.S. 398, 408] 487-490; Talley v. California, 362 U.S. 60, 64 ; Schneider v. State, 308 U.S. 147, 161 ; Martin v. Struthers, 319 U.S. 141, 144 -149.

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.

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.

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.

Substantive post pending…