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Employee Free Speech in the Workplace: Using the First Amendment As Public Policy for Wrongful Discharge Actions

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Employee Free Speech in the Workplace: Using the First Amendment As Public Policy for Wrongful Discharge Actions Employee Free Speech in the Workplace: Using the First Amendment as Public Policy for Wrongful Discharge Actions LISA B. BINGHAM* I. INTRODUCTION A private-sector employer in the United States may fire an employee for the employee's political views. 2 During the 1992 presidential campaign, employers required that employees sit through a presidential candidate's stump speech as part of a company-wide captive audience. 3 Employees commented to * Assistant Professor of Public and Environmental Affairs, Indiana University; J.D., University of Connecticut, 1979; Partner, law firm of Shipman & Goodwin, Hartford, CT 1979-89. This research was supported by a grant from The Fund for Labor Relations Studies, Ann Arbor, MI. The author thanks Professor Theodore St. Antoine, University of Michigan School of Law, for his comments on the manuscript and helpful suggestions. Professor Harry Pratter, Indiana University School of Law, also shared his insights and improved the manuscript with his review. The author gratefully acknowledges the invaluable assistance of Clark Johnson, who served as research assistant on this project. I As used in this paper, "private sector" employment includes all but government employment. The term includes nonprofit employers and private employers with substantial government contracts or grants. "Public sector" employment includes employment by federal, state, and local government, including municipalities, school boards, state institutions of higher education, and similar boards or commissions that represent political subdivisions of a state. 2 There are limited areas of protection for certain categories of expression. For example, the National Labor Relations Act protects speech on unionization. 29 U.S.C. §§ 157, 158(c) (1988). See generally Staughton Lynd, Employee Speech in the Private and Public Workplace: Two Doctrines or One?, 1 INDus. REL. L.J. 711 (1977) (arguing that similar limits are applied to public employees and unionized private sector employees who engage in disruptive speech). To varying degrees, the developing cause of action for wrongful or retaliatory discharge protects whistleblowers. See generally 1 LEx K. LARSON, UNJUST DISMIsSAL (1993); IRA MICHAEL SHEPARD Er AL., WrrHour JuST CAUSE (1989); PROTECING UNORGANIZED EMPLOYEES AGAINST UNJUST DISCHARGE (Jack Steiber & John Blackhorn eds., 1983). Most states protect employees' right to vote, see infra notes 48-50 and accompanying text, but only Connecticut explicitly protects employees' free speech rights, CONN. GEN. STAT. § 31-51q (1992). For more detailed discussion of employees' existing protection, see Terry Ann Halbert, The First Amendment in the Workplace: An Analysis and Call for Refonn, 17 SErON HALL L. REv. 42 (1987). 3 Rowland Evans & Robert Novak, Bush Takes Message of Care to New Hampshire, OHIO STATE LAW JOURNAL [Vol. 55:341 reporters that they did not feel free to leave. 4 A CEO sent faxes to regional managers strongly recommending that they purchase seats at a candidate's fundraiser if they intended to have a future with the corporation; one who failed to do so lost his job.5 These examples illustrate the trend that employees are increasingly experiencing pressure to support the political candidate or cause that the employer believes best serves the corporate interest. This Article examines this trend and suggests a framework for a private legal remedy when the employer crosses the boundary from influence to coercion by dismissing an employee in retaliation for that employee's exercise of the right to free speech. First, the Article addresses how the problem has evolved and the traditional reluctance of courts to protect employees' political activities from employer retaliation. Second, the Article discusses policy reasons why state courts should use the First Amendment in wrongful discharge actions to protect employee political speech and discusses the results of a survey on employer influence upon employee political activities. 6 Third, it THE HmAL)-TMms (Bloomington, IN), Jan. 18, 1992, at A6. 4 The courts have long held that the right to be free from unwanted speech is itself a form of free speech. See, e.g., Rowan v. United States Post Office Dep't, 397 U.S. 728 (1970). 5 Neiss v. Cherry Payment Sys., Inc., No. 92-C-403-S (W.D. Wis. July 17, 1992). The plaintiff alleged his employer fired him the day after he refused to contribute to the President's Dinner, a Republican fundraiser for House and Senate candidates. Federal District Court Judge Shabaz denied the employer's motion to dismiss a wrongful discharge claim made under Wisconsin law. 6 The term "wrongful discharge" refers to causes of action sounding in tort or contract. Historically, all employment was terminable at will, that is, with or without cause. 1 LARsoN, supra note 2, § 2.04; Jay M. Feinman, The Development of the Employment at Will Rule, 20 AM. J. LEGAL HIST. 118 (1976). Since the late 1970s, state courts have begun to limit the doctrine of employment at will through a civil cause of action for retaliatory or wrongful discharge. 1 LARSON, supra note 2, § 2.07. In general, an employee may recover damages if the employer terminated employment in retaliation for employee conduct that is protected by a substantial and important public policy. The employee has the burden of proving that the conduct is protected, that the public policy at stake is sufficiently important, and that the employer actually fired the employee in retaliation for the conduct. The burden of proof then shifts to the employer. The employer may avoid liability by proving a permissible ground for dismissal. What represents a sufficiently important public policy varies from state to state. The highest courts of more than two-thirds of the states have recognized the cause of action. Id. See generally Michael A. DiSabatino, Annotation, Modem Status of Rule That EmployerMay DischargeAt-Will Employee for Any Reason, 12 A.L.R. 4TH 544 (1982). This Article suggests a remedy that uses the First Amendment and comparable state constitutional provisions as a source of public policy in wrongful discharge actions under state law. Although in some circumstances state constitutions may provide broader protection for speech than does the First Amendment, this Article does not 1994] EMPLOYEE FREE SPEECH addresses the constitutional issue implicit in courts' condoning employer conduct that infringes upon employee free speech rights. Specifically, in the common law tort of wrongful discharge, state courts have created a classification based on the content of a private-sector employee's speech. State courts do recognize a cause of action when an employee speaks out on violations of law or when the employee claims benefits to which she is legally entitled but do not recognize a cause of action when an employee engages in political speech outside the workplace. This classification disadvantages political speech, the category of speech courts traditionally give the highest protection in First Amendment jurisprudence. State courts engage in state action within the reach of the Constitution by creating this classification. Courts may avoid the constitutional problem by using the First Amendment as the basis for a wrongful discharge claim. Finally, this Article examines the limits of this new remedy, which can be drawn from analogous public-sector cases. In the public sector, an employee may speak out on a matter of public concern, but the courts will weigh the employee's interest in speech against the public employer's interest in the efficient operation of the workplace. In addition, courts have recognized exceptions for certain categories of policy-maldng and confidential employees, who forfeit certain First Amendment protections by virtue of their job function. Courts should move to recognize the tort of wrongful discharge in instances when an employer retaliates against an employee for nondisruptive political speech. II. How COURTS TREAT EMPLOYER INTERFERENCE WITH EMPLOYEE FREE SPEECH RIGHTS In Coppage v. Kansas, the Supreme Court held that it did not represent any form of duress, coercion, or undue influence for an employer to fire an employee who joined a labor union in breach of a written agreement that he separately consider state law protection of free speeh. The basic argument would apply equally to state and federal constitutional provisions. This Article does not attempt a comprehensive review of the ever-growing literature on wrongful discharge and employment at will. For a review of major pieces in the literature, see PAUL C. WEILER, GOVERNING THE WORKPLACE (1990). See also Lawrence E. Blades, Employment at Will vs. Individual Freedom:Limiting the Abusive Exercise of Employer Power, 67 COLuM. L. REv. 1404 (1967); Martin H. Malin, Protectingthe Whistleblowerfrom RetaliatoryDischarge, 16 U. MIcH. J.L. REF. 277 (1983); Clyde W. Summers, Individual Protection Against Unjust Dismissal: YTime for a Statute, 62 VA. L. REV. 481 (1976); Note, Protecting At Will Employees Against Wrongful Discharge: The Duty to Tenninate Only in Good Faith, 93 HArY. L. REv. 1816 (1980). OHIO STATE LA WJOURNAL [Vol. 55:341 would not do so.7 Apart from the tumultuous history of early labor 7 Coppage v. Kansas, 236 U.S. 1 (1915). The Kansas legislature had adopted a statute forbidding employers to exact a promise not to join or retain membership in a labor organization as a condition of securing or retaining employment. In an early application of substantive due process, the Court held that this statute infringed upon the Fourteenth Amendment right of freedom of contract: [W]e have nothing to do with any question of actual or implied coercion or duress, such as might overcome the will of the employ6 by means unlawful without the act. In the case before us, the state court treated the term "coerce" as applying to the mere insistence by the employer, or its agent, upon its right to prescribe terms upon which alone it would consent to a continuance of the relationship of employer and employ6. Id.
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