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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May 12
Trump administration proposes expanding fertility care benefits; Connecticut passes employment legislation; NFL referees ratify new collective bargaining agreement.
May 11
NLRB Judge finds UPS violated federal labor law; Tennessee bans certain noncompetes; and Colorado passes a bill restricting AI price- and wage-setting
May 10
Workers at the Long Island Rail Road threaten to strike, and referees at the National Football League reach a collective bargaining agreement.
May 9
HGSU wraps up its third week on strike and economists find that firms tend to target workers with “wage premiums” for AI replacement.
May 7
DOL drops litigation of Biden-era overtime rule; EEOC sues NYT for discrimination against white male employee; New Jersey finalizes employee classification rule.
May 6
Trump Administration exempts foreign doctors from travel ban; job openings hold steady at 6.9 million; 30,000 healthcare workers prepare to strike across University of California hospitals.