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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December 8
Private payrolls fall; NYC Council overrides mayoral veto on pay data; workers sue Starbucks.
December 7
Philadelphia transit workers indicate that a strike is imminent; a federal judge temporarily blocks State Department layoffs; and Virginia lawmakers consider legislation to repeal the state’s “right to work” law.
December 5
Netflix set to acquire Warner Bros., Gen Z men are the most pro-union generation in history, and lawmakers introduce the “No Robot Bosses Act.”
December 4
Unionized journalists win arbitration concerning AI, Starbucks challenges two NLRB rulings in the Fifth Circuit, and Philadelphia transit workers resume contract negotiations.
December 3
The Trump administration seeks to appeal a federal judge’s order that protects the CBAs of employees within the federal workforce; the U.S. Department of Labor launches an initiative to investigate violations of the H-1B visa program; and a union files a petition to form a bargaining unit for employees at the Met.
December 2
Fourth Circuit rejects broad reading of NLRA’s managerial exception; OPM cancels reduced tuition program for federal employees; Starbucks will pay $39 million for violating New York City’s Fair Workweek law; Mamdani and Sanders join striking baristas outside a Brooklyn Starbucks.