The First Amendment and At-Will Employment
December 31, 2008 by Brenda Rodeheffer
The election of 2008 is over and what an enthralling and exciting year this was for our nation. Many worked for, or volunteered for, their candidate of choice. Some, like me, may have yearned to contribute and work for the success of their favorite candidate, but could not because of their employment. I didn’t contribute one dime, go to any campaign events, or display any signs (except for one poster on my refrigerator in the garage that even visitors to my home could not see). I didn’t act on my desires because our Employee Handbook prohibits any employee political activity except to vote. I did work for the state back when employees were expected to make contributions with every paycheck to the party in power. So, I know the prohibition against political activity is a protection for the employee as well as the public.
This restriction on the right to freedom of speech does lead to a conflict between an individual’s First Amendment rights and Indiana’s status of “at will employment.” The appellate courts have repeatedly and consistently declared that Indiana is an “at will” employment state. Employees serve at the will and the pleasure of their employer; nevertheless, there are factors that are illegal to consider in employment decisions, including political association.
Our own Seventh Circuit Court of Appeals has examined whether political affiliation may be considered in employment decisions. The United States Supreme Court has established that the First Amendment insures freedom of belief and association for most public employees in a case brought by deputies for the Illinois Cook County Sheriff. The Court, quoting from an earlier education case, stated “(if) there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be the orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”
There are exceptions to the general prohibition against consideration of political belief or activity in public employment decisions. At first, the federal courts exempted employees in policymaking positions and then exempted positions requiring confidentiality with the supervisor. However, as the cases developed, the courts found that there are many middle-management or lower-level employees who have policymaking responsibilities and/or access to confidential information in which it is not necessary for the employee to be politically loyal in order to perform the job. Conversely, there are jobs that entail neither confidentiality nor policymaking, but for which political association is an appropriate job requirement. The test became one of functionality. Political affiliation may be considered only when it can be demonstrated that such affiliation is an appropriate requirement for the employee to effectively perform the job.
The federal courts have already determined that political association is not an appropriate job requirement for many of the positions that trial court judges oversee. This includes public defenders, bailiffs, court reporters, special investigators, and correctional officers. However, positions such as chief probation officer, chief bailiff, or court administrator may or may not be protected depending upon the actual functions of the position. The primary considerations are whether the position requires the employee to exercise political judgment in crafting policy and/or entails the exercise of a substantial amount of political (as distinct from professional) discretion. Evidence of this would include history of the position, the job description, the actual duties, salary, chain of command, and size of the staff.
This prohibition against consideration of political association in making employment decisions does not mean that a newly elected judge is required to keep on staff poorly performing employees hired by the predecessor judge. Judges are still free to hire and fire at will as long as no specific laws are violated, including the First Amendment rights of the employees. A newly elected judge can take certain steps to prevent lawsuits and to prove that an employment decision was based on objective factors, rather than political association. By taking these steps, the court will also show that it has acted honorably and in the best service of the citizens.
When hiring, use a process that is objective on its face.
- First, draw up a job description or list for yourself the requirements and needs of the job.
- From that description or list, prepare a set of form interview questions designed to obtain information about the applicants’ abilities to meet the requirements of the job.
- Ask the same questions of all interviewees and record the responses. The questions should be crafted to solicit facts that can be objectively compared, such as experience, training, communication skills and abilities. There is nothing wrong with looking for factors such as an outgoing personality if it is a position that will deal with the public. It is also legitimate to consider your past working experience with an applicant.
- Do not look at the voting record of candidates and do not ask about politics. If an applicant puts membership in the Young Political Party on the resume or application, don’t ask about it.
- Keep a record of the reasons for selecting the persons you hired.
If you take these steps, you will have gone a long way in demonstrating by objective evidence that your employment decisions were based on legal factors.