[EL] Hawaii Union Employees Case

Mon Aug 27 15:48:19 PDT 2012

  Just to be clear, I wasn't asserting that anything "is so" -- I was just
speculating/hoping that there might be a remedy in employment law for what
is on its face a disgraceful abridgement of democratic rights.

I appreciate the link to Eugene's article, which is an extremely well
researched survey of an interesting area of law -- and a far more likely
locus of intimidation and retaliation for political speech than is the
federal government.

Eugene's article indicates, in his brief discussion of federal statutes and
case law, that labor unions have a special exception, allowing them to
refuse to hire employees who don't share the union's political views. But
that doesn't seem to be a factor in the union's argument or in the
Republican members' position, as far as I can tell -- that is, the argument
would apply to any employer. Am I reading that correctly?

Mark Schmitt
Senior Fellow, The Roosevelt Institute <http://www.newdeal20.org>
202/246-2350
gchat or Skype: schmitt.mark
@mschmitt9 <https://twitter.com/#%21/mschmitt9>
On 8/26/2012 8:07 PM, Samuel Bagenstos wrote:

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 <http://www.newdeal20.org/>
202/246-2350
gchat or Skype: schmitt.mark
@mschmitt9 <https://twitter.com/#%21/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<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”<http://electionlawblog.org/?p=39083>
****

Posted on August 24, 2012 6:38 pm <http://electionlawblog.org/?p=39083> by Rick
Hasen <http://electionlawblog.org/?author=3> ****

WOW<http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=27694789&vname=mpebulallissues&jd=a0d4g2y8d9&split=0>:
“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 92697-8000949.824.3072 - office949.824.0495 -
faxrhasen at law.uci.eduhttp://law.uci.edu/faculty/page1_r_hasen.htmlhttp://electionlawblog.org
Now available: The Voting Wars: http://amzn.to/y22ZTv

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