Laws Protecting Private Employees’ Speech and Political Activity Against Employer Retaliation: Cross-Cutting Questions

Eugene Volokh:

Before I get into the specifics of the various state and local statutes, let me flag some questions that different legislatures have answered differently (and, in some instances, that some legislatures haven’t expressly addressed).

[1.] Criminal Liability, Civil Liability, or Both?

Some of the statutes expressly provide for civil liability, some for criminal liability, and some for both. But courts generally treat these sorts of criminal statutes as also generating a private right of action, either as a matter of statutory interpretation or as an application of the “wrongful discharge in violation of public policy” tort.

[2.] Coverage for Existing Employees or Also for Applicants?

Some of the statutes expressly cover all employer decisions. Others only cover discharge or discipline of current employees rather than refusal to hire applicants. Note, though, that the California Supreme Court has read its statute as covering discrimination in hiring, even though the statutory text refers just to actions with regard to “employee[s].”

[3.] Application Only to Established Policies, or Also to Individual Employment Decisions?

Some of the statutes expressly cover all employer actions, but others cover only policies restricting speech. Such policies need not be published ones; an accepted course of conduct would suffice.[1]

The question is whether the statutes that ban speech-restrictive “polic[ies]” should also apply to individual incidents of discrimination, animated by an employer’s concerns at that moment rather than by some coherent general plan. The Louisiana Supreme Court has answered the question yes, holding that the ban on enforcing any “rule, regulation or policy” restraining political activity extends to individual firing decisions made even without any express policy. “[T]he actual firing of one employee for political activity constitutes for the remaining employees both a policy and a threat of similar firings.” On the other hand, the California Supreme Court has defined “policy” as “[a] settled or definite course or method adopted and followed” by the employer, and a California federal district court has specifically concluded that an individual retaliatory decision does not suffice to show the existence of a “rule, regulation, or policy.”