Archive | Laws Restricting Private Retaliation for Speech

Lawsuit Over Firing Based on Employee’s Removal of Employer’s “Gay/Lesbian Pride Month” Poster

From Nava v. Safeway, Inc. (Cal. Ct. App. July 31, 2013), an interesting illustration of what can happen under statutes protecting private employees against employer retaliation based on the employees’ political speech or beliefs:

Defendant Safeway, Inc. …, a large supermarket chain, frequently displayed thematic posters in its stores and distribution centers as a way of promoting a corporate policy of diversity. In June 2009, a new poster entitled “GAY/LESBIAN PRIDE MONTH” was displayed by Safeway in the employee break room of its distribution center in Merced, California, where plaintiff Juan Nava was employed.

Plaintiff was offended by the poster and removed it. When his supervisors confronted him about removing the company poster, plaintiff explained that he disagreed with the poster’s political message. It appeared to plaintiff that Safeway was taking sides in the statewide political debate over same-sex marriage, a matter on which plaintiff had strong convictions. One week after this conversation took place, Safeway terminated plaintiff’s employment….

In 1937, “the California Legislature, recognizing that employers could misuse their economic power to interfere with the political activities of their employees, enacted Labor Code sections 1101 and 1102 to protect the employees’ rights.” Labor Code section 1101 provides: “No employer shall make, adopt, or enforce any rule, regulation, or policy: [¶] (a) Forbidding or preventing employees from engaging or participating in politics …. [or] (b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees.” Labor Code section 1102 provides: “No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.” These sections are designed to

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Threatening to Fire Someone for Signing an Initiative or Referendum Petition = Improper Influence on a “Voter”?

State statutes in Maine, New Hampshire, and Utah ban “improper influence” on “voters.” Each provides, with immaterial variations, that,

A person is guilty of improper influence if he … [t]hreatens any harm to a public servant, party official or voter with the purpose of influencing his action, decision, opinion, recommendation, nomination, vote or other exercise of discretion….

“Harm” means any disadvantage or injury, pecuniary or otherwise, including disadvantage or injury to any other person or entity in whose welfare the public servant, party official or voter is interested.

Both states’ laws define “voter” as, essentially, a person who is “registered to vote.”

My questions: Maine and Utah have the initiative and referendum. Should these statutes be viewed as barring employer threats to fire someone for signing an initiative or referendum petition, on the theory that the signers are acting in their capacity as “voter[s]” engaged in “action, decision, … or other exercise of discretion”? Or should those provisions be read as limited to threats aimed at influencing how a voter votes in the election itself?

Note that Utah law states that, “A Utah voter may sign an initiative petition if the voter is a legal voter,” which makes it sound like signing an initiative petition is a task of a person acting as “voter.” Maine law likewise says, “A person circulating a petition must provide the voter the opportunity to read the proposed direct initiative summary and fiscal impact statement required by section 901 prior to that voter signing the petition.” [...]

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May an Employer Require Employees to Show Up at a Pro-Candidate-X Rally?

I blogged earlier today about whether employers may fire employees based on how they voted (no), and whether employers may urge employees to vote a particular way (generally yes). But may employers require employees to participate in campaign activity, such as by showing up at a rally supporting a particular candidate?

It depends on the state. Many states have statutes that bar employer retaliation based on employee speech or other political activity, and some of those statutes also bar requirements that an employee participate in such activity, though the language is ambiguous:

  1. California and Louisiana ban employers from “[c]ontrolling or directing … the political activities … of employees,” which might be read as banning them from directing that the employee participate in a political rally.
  2. Connecticut bans employers from “disciplin[ing] or discharg[ing]” employees based on the employee’s “exercise … of rights guaranteed by the First Amendment,” which likely includes the right not to participate in a political rally.
  3. Washington bans employees from discriminating against employees for, among other things, “the failure in any way to support or oppose” “a candidate, ballot proposition, political party, or political committee.”

Some states — Massachusetts, Mississippi, Oregon, and Wisconsin — also specifically bar employers from requiring that employees “render any political service” as a condition of employment; showing up at a rally would likely be seen as a “political service.” Here, as a sample, is the text of the Massachusetts statute:

No person employed for compensation shall be under any obligation to contribute to any candidate or political committee, or to render any political service on account of, or as a consequence of, his employment, and such person shall not be removed or otherwise prejudiced for refusing to do so.

These statutes generally apply, I think, both to rallies in support of state [...]

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Employers’ Urging Employees to Vote a Particular Way, and Warning of Dangers if a Particular Candidate Is Elected

As I mentioned below, employers generally may not fire or threaten to fire employees based on their votes. But may they try to persuade their employees to vote a particular way? And, in particular, may they argue that, if a particular candidate is elected, things will go badly for the business and therefore for its employees?

1. The Supreme Court has long recognized employers’ right to speak to its employees. See, e.g., Thomas v. Collins (1945) and NLRB v. Virginia Electric Power Co. (1941). By 1941, all but two of the Justices were Roosevelt appointees (the others were Chief Justice Harlan Fiske Stone and Justice Owen Roberts, both generally seen as moderates), and one of the two Republican appointees, Roberts, didn’t participate in Virginia Electric; these were not decisions of a politically conservative Court. And the first of the cases came just 10 years after the first Supreme Court decisions striking down a government action on free speech grounds, so this principle was no late addition to First Amendment law. There has thus been little controversy about the proposition that employers generally have a right to speak to employees.

2. The issue has usually arisen within the context of employer speech about unionization, and not about elections. But the one case that I know has considered the issue, Kentucky Registry of Election Finance v. Blevins (Ky. 2001), applied this to candidate election campaigns, striking down a statutory provision that barred any employer from circulating statements requesting employees to vote a particular way.

To be sure, before Citizens United all corporations (except some ideological nonprofit corporations), whether or not speaking to their employees, could have been restricted from using corporate funds to support or oppose a candidate. Still, even then, corporations had a right to support or [...]

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Firing (or Threatening to Fire) Employee Based on His Vote

I’ve recently heard some uncertainty about whether employers may fire employees based on how they voted, or threaten to fire them based on how they voted. The answer — based on my own research — is that all states have laws that ban this sort of conduct as to state elections, and the federal government has a law that bans this sort of conduct as to federal elections.

Most of the laws specifically ban employer retaliation or employer threats. Others, including the federal law, use more general language, for instance by prohibiting “intimidat[ing], threaten[ing], coerc[ing], or attempt[ing] to intimidate, threaten, or coerce any other person for the purpose of interfering with the right of such other person … to vote as he may choose.” But those courts that have considered the question have read this language as applying to economic retaliation and not just violence. See United States v. Bd. of Educ. of Greene County, 332 F.2d 40, 44, 46 (5th Cir. 1964) (concluding that the refusal to renew a year-to-year employment contract based on a person’s exercise of her right to vote could be “intimidation”); United States v. Bruce, 353 F.2d 474, 476–77 (5th Cir. 1965) (likewise, as to property owners’ decision to bar a person from their property, when this decision seriously interfered with the person’s ability to work as an insurance premium collector); United States v. Beaty, 288 F.2d 653, 656 (6th Cir. 1961) (likewise, as to landlords’ retaliation against their sharecropper tenants); see also Smith v. Stechel, 510 F.2d 1162, 1164 (9th Cir. 1975) (so reading a similarly worded statute that applied to housing rather than to voting); Reg’l Econ. Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d 35 (2d Cir. 2002) (likewise as to another similarly worded statute). [...]

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Suspending Employee for Signing a Referendum Petition

Gallaudet University’s “chief diversity officer,” Angela McCaskill, was suspended (with pay) for signing a petition that sought a referendum vote on whether to undo Maryland’s new same-sex marriage law. Is it legal for a private employer to suspend or fire an employee for signing a referendum or initiative petition?

It depends on the state. As I’ve discussed in a good deal of detail in a recent article, Private Employees’ Speech and Political Activity: Statutory Protection Against Employer Retaliation, about half the states impose some restrictions on private employers’ ability to retaliate against employees for the employees’ speech or political activity. Some state laws cover a large range of speech and political activity, while some cover only a small range. (Some, which I didn’t discuss in the article, only ban discrimination based on how an employee voted.) But nearly all the states that do impose such restrictions — beyond a mere ban on discrimination based on voting — would apply to referendum or initiative signatures.

Indeed, D.C. is one of these jurisdictions.

1. D.C. law provides that it is a crime for any person to “by threat[] or intimidation, interfere[] with, or attempts to interfere with, the right of any qualified registered elector to sign or not to sign any initiative, referendum, or recall petition, or to vote for or against, or to abstain from voting on any initiative, referendum, or recall measure.”

2. Threat of firing or suspension likely qualifies as a threat (see Part II.A.8 of the article, as well as See, e.g., Carl v. Children’s Hospital (D.C. 1997), involving a slightly different but similar statute).

3. “You’re suspended because of your signature” should qualify as much as “we’ll suspend you if you sign.” As Davis v. La. Computing Corp., 394 So.2d 678, 680 (La. [...]

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Minnesota Law on Private Employer Retaliation Based on Employee Political Activity

Dale blogged yesterday about an interesting campaign contribution disclosure case. An employee of a Catholic organization in Minnesota (called John Doe for purposes of the litigation) donated $600 to a group opposing a proposed Minnesota constitutional amendment that would have provided that under Minnesota law marriage may be only between a man and a woman. Usually, the identity and employer of people who make donations of more than $100 must be made public, but the Minnesota Campaign Finance and Public Disclosure Board granted him an exemption under a statutory provision that provides:

The board must exempt a member of or contributor to an association or any other individual, from the requirements of this section if the member, contributor, or other individual demonstrates by clear and convincing evidence that disclosure would expose the member or contributor to economic reprisals, loss of employment, or threat of physical coercion.

The First Amendment has been read as similarly mandating exemptions from disclosure rules, if a sufficient threat of retaliation is shown, though the details are not clear. The Board reasoned that “the Catholic Church’s actions with respect to Ms. Cameron” — a Catholic schoolteacher who was allegedly fired some months before because “she expressed to her supervisors in the private context of an annual self-evaluation that she did not agree with all of the Church’s teachings on a personal level, but that she did not bring her own opinions into the classroom” — “provide clear and convincing evidence that public disclosure of his opposition to the marriage amendment would expose him to the loss of his employment.”

I don’t have much to add to Dale’s post in general, but I did want to note something that I learned while writing my Private Employees’ Speech and Political Activity: Statutory Protection Against Employer Retaliation article [...]

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Private Employees’ Speech and Political Activity: Statutory Protection Against Employer Retaliation

My article on this subject just came out, but I neglected to blog about it. Here is the Introduction, which briefly explains the issue, and provides a very quick — and, I hope, interesting — bit of history about it. The article itself is aimed at describing the law, both by quoting the relevant statutes and by summarizing the court decisions interpreting them. I am not expressing view in favor of or against such statutes.

About half of Americans live in jurisdictions that protect some private employee speech or political activity from employer retaliation. Some of these jurisdictions protect employee speech generally. Others protect only employee speech on political topics. Still others protect only particular electoral activities such as endorsing or campaigning for a party, signing an initiative or referendum petition, or giving a political contribution. Moreover, though the matter is not clear, federal law may often protect private employees who speak out in favor of a federal candidate. To my knowledge, these protections have not been systematically cataloged, and some have never been cited in a law review article.

Some employee free speech protections were enacted following the Civil Rights Act of 1964, which banned employment discrimination based on race, religion, sex, and national origin, and are modeled on that statute. But many of the protections long preceded the Act, and similar state civil rights laws. Indeed, the first date back to 1868.

These early protections for private employee speech and political action were likely based on the very first American laws banning employment discrimination by private employers — voter protection laws, which barred employers from discriminating against employees based on how the employees voted. (Recall that this was the era before the secret ballot.) As early as the 1700s, several colonies and states barred any “attempt to overawe,

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Discrimination in Public Accommodations

The L.A. Times reports:

Santa Monica’s Hotel Shangri-La and its owner discriminated against members of a Jewish organization two years ago when staff and security guards ordered the group to halt a poolside event, a jury determined Wednesday….

Members of the Friends of the Israel Defense Forces had gathered at the Art Deco hotel on the afternoon of July 11, 2010, and, shortly after their party got underway, were told to remove their literature and banners, get out of the pool and hot tub, and stop handing out T-shirts, according to court documents and testimony.

The employees said they were following the orders of hotel owner Tehmina Adaya, a Muslim woman of Pakistani descent….

[T]he jury heard deposition testimony of a former employee, Nathan Codrey, who said Adaya repeatedly used profanity as she insisted that the event stop.

“If my [family finds] out there’s a Jewish event here, they’re going to pull money from me immediately,” Adaya said, according to Codrey’s testimony, which was read by a stand-in because Codrey was out of state and could not be subpoenaed.

Adaya emphatically denied she had ordered the group to halt the event for fear that her family would cut off her financing….

The jury awarded $1.2 million in compensatory damages under the state public accommodations antidiscrimination law (the Unruh Civil Rights Act), plus $400,000 in punitive damages, according to the New York Times. I assume that the high damages award — rare in public accommodations cases — stems from the number of people who are affected.

It seems to me that business owners should have a right to decide which events to allow on their property. If a Pakistani Muslim (or anyone else) doesn’t want pro-Israeli-military events on her property, or if a Pole (or anyone else) doesn’t want pro-Soviet-Army [...]

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Federal Law (Sometimes) Restricting Private Employers from Firing Employees Based on Employees’ Advocacy for Federal Candidate

I’m writing a short article on state laws that restrict private employers (as well as government employers) from discriminating against employees based on the employees’ speech or political activity. There are more such laws than many think, and while I’m ambivalent about the laws, I thought they were worth flagging for people to consider.

In the process, I came across a federal law — an aspect of the Civil Rights Act of 1871, 42 U.S.C. § 1985 — that might do the same as to retaliation for employee speech that supports a federal candidate, at least in some circuits and in situations where at least two people are involved in the firing decision. But I’m not an expert on § 1985 law, which is quite complicated, so I thought I’d post a very rough draft of this section of my article, and see what readers who do know this area have to say. Please note that the article is descriptive and analytical, not normative: I’m not looking for arguments about what the law should be, but rather about what the reasonable interpretation of the law is, given the text and the existing Supreme Court precedents.

(Note that I discuss in another part of the article the possibility that such laws may be unconstitutional in some situations, for instance if they purport to limit a newspaper’s ability to fire a columnist for the columnist’s speech. Note also that publicly urging people to fire someone for his speech, even when the firing would be illegal, is likely constitutionally protected under Brandenburg v. Ohio and NAACP v. Claiborne Hardware, though actually doing the firing, in concert with one or more other people, would be actionable.)

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The Civil Rights Act of 1871 may prohibit some kinds of employer retaliation based [...]

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