[EL] Hawaii Union Employees Case

Sun Aug 26 17:07:40 PDT 2012

As one of the employment-law folks on this list, I can say that I wish what Mark says were so.  But in lots of jurisdictions, it's not.  The Third Circuit's 1983 decision in Novosel v. Nationwide Insurance held that, under the court's understanding of Pennsylvania law, the public policy exception to the at-will rule applied to bar firing an employee for refusing to participate in a lobbying campaign.  But Novosel has been understood as kind of a high-water-mark case, and subsequent Pennsylvania cases have not been kind to it.  Connecticut has a statute that essentially prohibits private employers from discharging employees in circumstances in which, had the employer been a public employer, the discharge would violate the First Amendment.  Other states have statutes that might prohibit this sort of conduct as well.  Eugene Volokh recently published an article that catalogs them: http://www.trolp.org/main_pgs/issues/v16n2/Volokh.pdf .

Samuel R. Bagenstos
Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109
sambagen at umich.edu
http://web.law.umich.edu/_FacultyBioPage/facultybiopagenew.asp?ID=411
http://disabilitylaw.blogspot.com/
Twitter: @sbagen

On Aug 26, 2012, at 6:02 PM, Mark Schmitt wrote:

> This case is a staggering example of how what many on this list call "freedom" -- the unfettered right of entities organized for economic purposes to use all the resources at their disposal to influence the outcome of elections -- can be profoundly oppressive to individuals attempting to exercise their own rights as citizens and to speak in their own voice. 
> 
> Hopefully there's a remedy for this kind of abuse of the employment relationship in employment law, if not in campaign finance law (or campaign finance law as 50% of the current FEC interprets it). At-will employment is a pretty sweeping doctrine -- you can be fired for any reason or no reason -- but there are some generally recognized exceptions, such as for people who are ordered to testify falsely in court. There must be cases like this in employment law, or cases where employees were required/expected to volunteer for a non-political cause. It will vary from state to state, though.
> 
> 
> 
> Mark Schmitt
> Senior Fellow, The Roosevelt Institute
> 202/246-2350
> gchat or Skype: schmitt.mark
> @mschmitt9
> On 8/26/2012 12:10 AM, Rick Hasen wrote:
>> A reader sent along the following observations:
>> 
>> There has been some confusion on this case.  The employees were not on the clock.  They were required to participate in political activities outside of work.  If you read the statement of the Democratic Commissioners, it is pretty clear that the problem here was not that this was a work duty, but a requirement that they donate their own time to the Union's independent expenditure activity. Maybe a subtle distinction, but it makes the question somewhat different than what Prof. Scarberry's email addresses.
>> 
>> From page 2 of the Dems statement: "There is no evidence, and the union does not suggest, that any employee was compensated for participating in after-hours campaign activities. Nor has the union attempted to argue that such activities were part of any employee's normal duties."
>> 
>> In fact, the reason the costs weren't reported as part of the IE is because the union argued the employees were volunteering on the own time.
>> 
>> 
>> On 8/24/12 10:32 PM, Scarberry, Mark wrote:
>>> I suppose that if a corporation or union is permitted to engage in campaign speech and chooses to do so, it has to do it through its employees. If GE’s board or management decided to send out letters urging people to vote for Gov. Romney, would the GE employee who prepares mailings be entitled to refuse to handle the letters? Would the copy writer be entitled to refuse to write the letter? If the publisher of the NY Times asks a staff writer to write an editorial endorsing Pres. Obama, could the writer assert a right not to do so? Maybe employees should have some statutory or common law right under some circumstances not to assist in political activity with which they disagree, but it doesn’t seem to me that they have a constitutional right to retain private employment and to refuse to communicate the corporation’s or union’s message.
>>>  
>>> At first I thought the story was about unions requiring workers who were represented by the union to do campaign work, which would be even worse than requiring them to pay dues for political campaigning. But these people were employees of the union; the union was their employer, not their bargaining representative.
>>>  
>>> Perhaps I’m missing something. I think it was wrong for the union to require its employees to do campaign work (assuming they weren’t hired to do public relations or similar work for the union that would necessarily involve them in putting out the union’s message), but it doesn’t seem to me to violate the employees’ rights, at least in the absence of a relevant statute. The GOP members of the FEC seem to be right that the statute invoked in this case does not apply, because the workers weren’t being coerced to contribute to a candidate or to do fund raising for a candidate. The union’s activity was independent. They did agree, if I’m reading the statement correctly, that the union should have disclosed the value of the workers’ time as an independent expenditure, and that it could be sanctioned for not doing so.
>>>  
>>> Mark S. Scarberry
>>> Professor of Law
>>> Pepperdine Univ. School of Law
>>>  
>>>  
>>>  
>>> From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
>>> Sent: Friday, August 24, 2012 9:11 PM
>>> To: law-election at uci.edu
>>> Subject: [EL] ELB News and Commentary 8/25/12
>>>  
>>> …
>>> “Making Employees Do Campaign Work Does Not Break Law, FEC Republicans Say”
>>> 
>>> Posted on August 24, 2012 6:38 pm by Rick Hasen
>>> WOW: “An organization may require its employees to participate in campaign activities during work time without violating campaign finance laws, according to the three Republican members of the Federal Election Commission. A statement, released Aug. 24, explained the votes of the FEC Republicans to dismiss coercion charges leveled against a Hawaii government workers union, the United Public Workers (UPW).”
>>> 
>>> “The ‘statement of reasons’ filed in the matter by the three FEC Republicans is online at http://eqs.nictusa.com/eqsdocsMUR/12044320562.pdf. The FEC Democrats’ statement is at http://eqs.nictusa.com/eqsdocsMUR/12044314776.pdf.”
>>> 
>>> This could potentially be very big.
>>> 
>>> …
>>> 
>>> -- 
>>> Rick Hasen
>>> Chancellor's Professor of Law and Political Science
>>> UC Irvine School of Law
>>> 401 E. Peltason Dr., Suite 1000
>>> Irvine, CA 92697-8000
>>> 949.824.3072 - office
>>> 949.824.0495 - fax
>>> rhasen at law.uci.edu
>>> http://law.uci.edu/faculty/page1_r_hasen.html
>>> http://electionlawblog.org
>>> Now available: The Voting Wars: http://amzn.to/y22ZTv
>>>  
>>> 
>>> 
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>> 
>> -- 
>> Rick Hasen
>> Chancellor's Professor of Law and Political Science
>> UC Irvine School of Law
>> 401 E. Peltason Dr., Suite 1000
>> Irvine, CA 92697-8000
>> 949.824.3072 - office
>> 949.824.0495 - fax
>> rhasen at law.uci.edu
>> http://law.uci.edu/faculty/page1_r_hasen.html
>> http://electionlawblog.org
>> Now available: The Voting Wars: http://amzn.to/y22ZTv
>> 
>> 
>> 
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