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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April 22
Congress introduces a labor rights notification bill; New York's ban on credit checks in hiring takes effect; Harvard's graduate student workers go on strike.
April 21
Trump's labor secretary resigns; NYC doormen avoid a strike; UNITE HERE files complaint over ICE concerns at FIFA World Cup
April 20
Immigrant truckers file federal lawsuit; NLRB rejects UFCW request to preserve victory; NTEU asks federal judge to review CFPB plan to slash staff.
April 19
Chicago Teachers’ Union reach May Day agreement; New York City doormen win tentative deal; MLBPA fires two more executives.
April 17
Los Angeles teachers reach tentative agreement; labor leaders launch Union Now; and federal unions challenge FLRA power concentration.
April 16
DOD terminates union contracts; building workers in New York authorize a strike; and the American Postal Workers Union launches ads promoting mail-in voting.