In today’s News & Commentary, Colorado unions push their state to join Montana in requiring just cause protection and Starbucks seeks to apply recent Supreme Court precedent on free speech to the NLRB’s analysis of employer threats.

The Colorado AFL-CIO and SEIU Local 105 have filed a ballot measure that would make Colorado the second state in the country to mandate just cause protection. Montana has had statewide just cause protection since the 1980’s. As a fascinating article from the Niskanen Center discusses, Montana’s Wrongful Discharge from Employment Act emerged as a legislative compromise after judges created exceptions to the state’s at-will employment scheme that led for large damage awards for fired workers.

The proposed Colorado law would prohibit companies with more than eight employees from firing a worker without just cause, which under the measure’s definition includes the employer’s financial instability or the employee’s substandard performance, neglect, or conviction for a crime of “moral turpitude.” Workers fired without just cause could sue for reinstatement, backpay, and attorney’s fees. The measure comes as Colorado unions are also seeking to pass a senate bill that would eliminate a right-to-work-like measure in the state.

Bloomberg reports that in an argument at the 8^th Circuit, attorneys for Starbucks asked the court to apply a recent Supreme Court case on free speech to its analysis of employer threats. If successful, the argument could make it more difficult for the Board to regulate employer speech. Starbucks is challenging a 2024 NLRB ruling that a store manager threatened an employee when the manager implied wage and benefit increases might be on hold if the store organized. Starbucks asked the 8^th Circuit to apply the Supreme Court’s standard from Counterman v. Colorado (2023) and hold that the Board must show the manager’s subjective awareness the speech was threatening. An attorney for the NLRB asked the court to instead apply the Gissel Packing standard, which is objective and considers the power imbalance between employee and employer.

In Counterman, a Colorado man was prosecuted for threats made on Facebook. The Supreme Court held that, to find a “true threat” unprotected by the first amendment, the state must show the defendant subjectively knew the statements were threatening. Starbucks argues that based on this decision, the NLRB must show the manager subjectively knew the speech would be viewed as threatening to find a threat. As Bloomberg notes, Apple made similar arguments before the 5^th Circuit last month.