September 23, 2022 • By Dennis Beaver
Fifty more migrants arrived outside Vice President Kamala Harris’s residence in Washington, D.C., on Saturday, days after two buses carrying asylum seekers arrived at her Naval Observatory home from Texas earlier this week, sent by Governor Greg Abbott.
“We’re sending migrants to her backyard to call on the Biden Administration to do its job & secure the border,” he tweeted at the time.
Abbott and other Republican leaders from border states have been sending migrants to Democratic-led sanctuary cities and states for months, calling it a protest of President Joe Biden’s immigration policies amid an influx of migrants at the southern border.
The moves sparked national attention, and outrage from the White House and Democrats who said the lawmakers were using migrants as political pawns. Republicans have cheered the move, arguing the Biden administration should do more to secure the border.
We are threatened with Being Fired by not signing a Petition
That same day I received an email from “three worried employees” at an IT company asking for my help. “Everyone received a Docu-Sign petition, sent by the owner of the company, stating that we oppose busing of these people and want action taken against the governors. He warned of a risk of being fired if we refuse. We don’t want to sign it. May we talk?”
I replied, “Set up a conference call at once. Your names will not be used in any story that I write.”
Within minutes I was speaking with these politically aware people who feel this amounts to extortion and is wrong of their employer to require them to support something they do not agree with “Don’t we have First Amendment Freedom of Expression rights? What should we do?”
No Constitutional Protection when Working for a Private Company
I immediately contacted a friend of this column, Professor David Schein, attorney, author and Director of Graduate Programs at the University of Saint Thomas in Houston. His areas of expertise include employment law where he represents employers.
“The first issue is very straightforward. You do not have constitutional freedom of speech protection when working for a private company. Public sector employees do.
“For example, a school teacher or district attorney – all of these people have freedom of speech when speaking in their individual capacities that do not relate to their job or on official matters.”
Being Forced to Sign Something = Duress
Schein point out that when someone, “Is forced to sign something – as in this case, to keep their job – this sounds like duress and has no legal effect. Under the law, it is not binding. My position would be that if the employer fired the employee for refusing to sign the petition, in any state, that person would probably be eligible to file for unemployment benefits, and possible wrongful termination.”
Advice to Employees – Possible Discrimination
So, what should these employees try before just refusing and running the risk of being fired?
Schein recommends, “Meeting with the employer and explain why you are not comfortable with the whole idea, and if it comes down to keeping my job or signing it, I will refuse and consider myself wrongfully terminated.”
And, if that happens — the person is fired and then files for unemployment insurance — what will an employer likely use to justify the termination?
“Insubordination,” Schein answers. “But I do not think there is a state unemployment office in our country that would find that to be a valid reason for firing someone.”
What about the race or ethnicity issues?
“If it could be shown that the employer singled those out for firing based on ethnicity or race, you could look at that under state law to see if a discrimination claim might be brought. But this claim might not do too well if it could be shown that, across the board, people were let go regardless of race/ethnicity.”
Advice to Employers
Schein’s recommendation for any employer considering something similar is a flat-out,
“Don’t! It is plain wrong!”
Later that Day – Things Moved Quickly
I sent a summary of Professor Schein’s recommendations to my readers and they forwarded it to all of their work colleagues. Then, on Monday afternoon, things moved very quickly, and I got such a heart-warming phone call from these three gutsy people.
“Mr. Beaver, right after lunch a group of about 30 of us went to the owner’s office along with the HR manager ‘Genie,’ who happens to be an attorney.
“She told him, ‘Unless you abandon this ridiculous petition nonsense, the people who you depend upon to fulfill your contracts are going to quit. This business that you founded will crash. You can’t treat the people who make your success possible this way! You should be ashamed of yourself.’”
Then something quite remarkable happened, I was informed. The boss asked everyone to accompany him to their conference room where he stood up, and “as red as a watermelon” apologized for everything. When my wife learned of his petition idea, she said, ‘You wanted them to sign WHAT? What is wrong with you?”
“While in a way, it was comical, no one was laughing,” Mr. Beaver, “and several of my colleagues were in tears. Thank you for you guidance.”
Of course the person who deserves a heart-felt thanks is my friend, Professor David Schein in Houston.
Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.