Amy L. Eisenstein is a student at Harvard Law School and a member of the Labor and Employment Lab.
In a prior post, I argued that President Trump’s Merit Hiring Plan may violate the First Amendment. This week, several unions — the American Federation of Government Employees, the American Federation of State, County & Municipal Employees, and the National Association of Government Employees — raised the same concern. As Law360 reports, on November 18, the coalition of unions sought a preliminary injunction in the District of Massachusetts to block federal agencies from asking the “Loyalty Question,” or Question #3, in federal civil service hiring. The question asks: “How would you help advance the President’s Executive Orders and policy priorities in this role? Identify one or two relevant Executive Orders or policy initiatives that are significant to you, and explain how you would implement them if hired.”
The unions argue that the question violates the First Amendment because it conditions federal employment on political allegiance, promotes viewpoint discrimination, compels speech, chills speech, and fails strict scrutiny. My post supplements these arguments by suggesting that all four of the Plan’s questions, when read together, could “coerce” applicants to make “associational choices” to get their desired job, which the Supreme Court’s First Amendment precedent expressly forbids.
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November 21
The “Big Three” record labels make a deal with an AI music streaming startup; 30 stores join the now week-old Starbucks Workers United strike; and the Mine Safety and Health Administration draws scrutiny over a recent worker death.
November 20
Law professors file brief in Slaughter; New York appeals court hears arguments about blog post firing; Senate committee delays consideration of NLRB nominee.
November 19
A federal judge blocks the Trump administration’s efforts to cancel the collective bargaining rights of workers at the U.S. Agency for Global Media; Representative Jared Golden secures 218 signatures for a bill that would repeal a Trump administration executive order stripping federal workers of their collective bargaining rights; and Dallas residents sue the City of Dallas in hopes of declaring hundreds of ordinances that ban bias against LGBTQ+ individuals void.
November 18
A federal judge pressed DOJ lawyers to define “illegal” DEI programs; Peco Foods prevails in ERISA challenge over 401(k) forfeitures; D.C. court restores collective bargaining rights for Voice of America workers; Rep. Jared Golden secures House vote on restoring federal workers' union rights.
November 17
Justices receive petition to resolve FLSA circuit split, vaccine religious discrimination plaintiffs lose ground, and NJ sues Amazon over misclassification.
November 16
Boeing workers in St. Louis end a 102-day strike, unionized Starbucks baristas launch a new strike, and Illinois seeks to expand protections for immigrant workers