I wrote this a while back on Hit Coffee and thought I would share it here for this audience, particularly in light of recent conversations. Be aware that this question actually involves a potential subplot in one of my novels and is not an effort to make some ideological point about coercion.
Jerry Gomez works as an IT person at a corporate law firm, Weicker & Schmidt. A woman named Beth Toomey is murdered in a high-profile manner and Jerry quickly emerges as a suspect when some emails are found where Toomey and Gomez were supposed to meet (somewhere around the time she was murdered) about something that Gomez was very upset about. When the police confront Gomez, he has a lawyer on speed-dial and refuses to say a word (refusing to even answer the question of how he knows Toomey). This only increases suspicion.
After the police do a search of his office at W&S, his boss and a corporate VP call Gomez into a meeting. Gomez assures the firm that he did not commit any crime and says that he is perfectly willing to take a polygraph to that effect provided that is the only question asked (the concern being that the police could subpoena the results and find out more than he wants to tell them). Likewise, beyond assuring them of his innocence, he will not explain any of the circumstances surrounding his relationship with Toomey for fear that they will be subpoenaed. The firm finds this unacceptable and they issue Gomez an ultimatum: fully cooperate with the authorities or you’re fired. Gomez refuses to cooperate and is fired.
Gomez is ultimately cleared of the crime (before charges are ever filed). Gomez sues the employer for wrongful termination on the basis that they should not be able to fire him on the basis of his exerting his constitutional rights. He loses the case because he lives in an Employment-At-Will state with no bad faith exemptions. That means that the firm can fire him for whatever reason they deem fit as long as it is not one of the exceptions carved out in the law (attempting unionization, whistleblowing, race/gender/etc.) and no such exception is made.
Gomez’s lawyers go to federal court on the basis that the Constitution is irreparably harmed if people are required to forego their rights in order to keep their jobs. Especially when, as in this case, no hardship is being brought to the company beyond the initial search of his office. In fact, until this lawsuit his employer was never mentioned in any of the newspapers. If Weicker & Schmidt are allowed to fire Gomez on the basis of his exerting his 5th Amendment rights, they could similarly act on other rights. For instance, they could be “good corporate citizens” and require employees to allow the police to search their car on traffic stops. If these sorts of things catch on, the protections in the Constitution become meaningless for all but the self-employed. They employer responds that the law is the law and having freedoms granted to you in the constitution does not grant you freedom from the repercussions of utilizing those freedoms. Gomez can assert his rights or not, but W&S simply doesn’t have to employ him. High-profile people are fired or punished for utilizing their First Amendment rights all the time: Whoopi Goldberg, Don Imus, John Rocker, etc.).
So the question is… do you think that Gomez should have a constitutional argument? If you think that W&S is in the right here on the basis that there is no right to continued employment simply because the Constitution does not allow the government to punish you, would you also support them if they wanted to institute the “good corporate citizen” policy of forcing employees to forego their Fourth Amendment rights against search and seizure? If not, how do you draw the line? If you agree with Gomez, do you also believe that someone who publicly makes offensive (anti-American, racist, anti-Semitic, etc.) comments should also be allowed to keep their job? If not, how do you draw the line?
An extra question for supporters of Employment At Will laws (I am one myself, for the most part): Would you make an exception of EAW in this case? If so, how would you draft it?
I think when his bosses told him to cooperate or be fired they over stepped their authority. In general they can fire him for whatever reason they want, like having a bumper sticker for a prez candidate they don’t like. However it is not a reasonable job requirement that the company gets to decide how he defends himself. They were acting as a de facto quasi arm of the gov by pushing him to cooperate.
I think he should hire Jim Rockford to find out what is really going on; that the head of WS is the real murderer and framed Gomez. Oh and have a couple good car chases.
Nice.
I’m musing over Will’s hypothetical and I’m not sure I have an answer yet.
Clearly the corporation is unjustly leveraging a power imbalance. I don’t know that the government is the right counter.
On the other hand, I don’t think companies should be allowed to drug test you, either.
As a corporate manager I’ve thought about this a lot, and sadly come to no general conclusion that satisfies me.
I don’t really think Gomez has a good claim under the Constitution. On the other hand, I think that what his employer did in this hypothetical shouldn’t be legal in general, but I don’t have a good way of describing cases like this that don’t return to the Bad Old Days of free-for-all wrongful termination suits.
I have a not-hypothetical.
I know of two companies headquartered in New York, one of which I worked for, another of which I refused to work for, that have the following clause in their employment agreement: after ending your employment with them (voluntarily or otherwise), you must, for a period of N months, notify them of any prospective employers. If they consider that company a competitor, they can forbid you from taking that job. There is no compensation for having your prospects limited in this fashion.
This is illegal in California, making it a gray area whether the clause is enforceable here. The legal advice I got on this was “They can sue you and your prospective employer. They’d probably lose in court, but that doesn’t matter because the job offer would probably disappear before it got that far.”
Should this kind of thing be legal? I say “no”, because, in Patrick’s phrase, it’s clearly unjustly leveraging a power imbalance. (It goes without saying that this clause was enforced selectively. The VP I worked under would routinely threaten people with it, but when he started a competing business, the company lent him office space until he began generating cash flow.)
Wow, that’s effed up.
Not as effed-up as this:
Towards the end of my tenure there, they hired a guy to do a specific job for a customer, billing him as an expert in X. He’d never really done X before, so his first week he attended a training course in it. Nothing really unusual so far, but in addition they only paid him 50% of his salary that (non-billable) week. When he asked me if that was common practice, I thought it sounded fishy, so I called HR. Naturally, the HR rep immediately called his boss and ratted him out for having “violated the confidentiality of his compensation agreement”.
Mike, you should know better than to call HR. Rookie mistake.
I have the distinction of having worked for one of the five worst employers in the country (according to employee satisfaction surveys). They had a non-compete clause that, strictly read, meant you couldn’t work for any company that had purchased a car. I don’t think it was read that way, nor would it be legal if it were meant that way, but given the givens of this company (wherein a VP told me that it would be in the interest of my career to find a new roommate after my then-roommate quit), one was never entirely sure if they wouldn’t at least try to blackball you through intimidation.
I had another case wherein I worked for a contractor that I absolutely hated and decided I would never work for again, I found out once the contract ended, they still effectively owned me for a year. I had to run any future contracts through them. This was in a state with looser laws on non-compete contracts, so it might have been enforceable. It did seem that other people had changed contractors, though, so maybe not.
I don’t think that either of them had the requirement of notifying them of future job offers, however. That’s… problematic. For the reason you describe.
… this is better than death threats to all known prospective employers. Maybe not much better, but…
“If you think that W&S is in the right here on the basis that there is no right to continued employment simply because the Constitution does not allow the government to punish you, would you also support them if they wanted to institute the “good corporate citizen” policy of forcing employees to forego their Fourth Amendment rights against search and seizure?”
You mean like corporations that require drug testing of employees? (something that, in many cases, is mandated by the Federal government.)
Or say an employee uses a racial or homophobic slur on company property. Can they use the First Amendment as a defense against being fired?
The notion that employers may require that employees accept limits on the exercise of their Constitutional rights did not spring into existence with W&S.
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This is not to say that there wouldn’t be a humdinger of a civil suit as a result of Gomez’s firing; but it wouldn’t be a slam-dunk “Constitutional rights violation do-not-pass-go” thing.
In the case of drug tests, though, they do not turn your results over to the local PD. I mentioned the free speech cases, though a difference between the two could be that one confers criminality liability. W&S is not saying “You have to talk to us,” but rather “You have to talk to the state.”
Whether it should be constitutionally protected or not (and I lean towards “not”), that makes me far more uncomfortable with W&S’s actions than with drug tests or other more common practices.
To go back to the drug tests, I am uncomfortable with the federal government requiring contractors to perform drug tests. However, the government saying “you must perform these drug tests and report any positive results to the local police department” is a different ballgame, in my view.
I have a friend who worked for CDOT and he told me that if you got your card, you were fired from CDOT *AND* you were put on a list where you could never be hired by CDOT ever again.
They promise a “drug-free workplace” and have “drug-free workplace” as one of the promises that must be kept in order to get contracts with CDOT.
> In the case of drug tests, though, they do
> not turn your results over to the local PD.
They can, though. All it takes is a subpoena. Hell, it doesn’t even *take* that, they can willingly hand it over. Concerned citizen and all that.
Once the test results exist, they’re out in the world. If it’s a false positive, you’re spending time changing the world.
They can willingly hand it over, but unless they are being pressured to do so (turn it over, not take the test in the first place), I’m not sure what we can attribute the government.
Theoretically, wouldn’t they need some other indication to get the subpoena in the first place?
Having had some time to mull it over, what are your thoughts on the Gomez case?
But how is it a Constitutional issue?
I always understood the Constitution to be placing limits on government action. The mechanism by which the government places constraints on individual behavior is the US Code, which is created by Congressional activity.
Indeed, as I said earlier, if the Constitution overrides the US Code, then why can’t I scream “NIGGERS AND WOMEN ARE STUPID” at the top of my lungs while at my place of employment? Wouldn’t it be illegal to fire me? After all, I’m only exercising my First Amendment right to freedom of speech.
This is a good point, as it relates to the Gomez case. For it to be a Constitutional issue, it would seem that there would need to be the government placing some sort of coercion or inducement on the employer.
To take the drug example, then, there may be a case to be made that the drug tests themselves are unconstitutional if they are the product of the government saying “Do this, or we won’t give you any contracts.” I don’t think there is a constitutional issue here, but I could see how there could be.
If the government were to say, however, that you must have drug tests and must turn any positive results over to the police, or else you can expect no benefits/contracts from the government, that strikes me as more problematic.
So for the Gomez case, it might come down to why W&S did what they did. If the government applied pressure, then… what? Hmmm. They wouldn’t be able to give Gomez his job back, though anything Gomez might have told the police could be found inadmissable because he was induced to talk by a corporation that was arguably acting as an agent of the government.
This goes into a level of criminal law beyond which I know. I know that if you make a deal with the government for immunity and then wear a wire, the same entrapment rules apply to you as apply to an officer wearing a wire. But I don’t know how that might work in this case, if it does, and what would constitute “government pressure” on an employer.