Constitutional Employment Law: Zimmer's Intuition on the Future of Employee Free Speech Law
21 Pages Posted: 29 Oct 2016 Last revised: 7 Jan 2017
Date Written: January 6, 2017
This article maintains that Mike Zimmer essentially favored the constitutionalization of the workplace to provide private sector employees the same “reason-specific protections” that the federal constitution provides to public-sector employees in the area of workplace free speech. In Part II, the protections that public employees have under the First Amendment are discussed, both at the time that Zimmer wrote in 1993 and now, almost twenty-five years later. Part III explores Zimmer’s writing on employment at will more generally and the then-pending Restatement of Employment Law and how his writings evidenced his strong dislike for the current employment-at-will system and his preference for a just cause regime, similar to the one that he enjoyed during his own Teamsters days. Finally, Part IV discusses how, although Zimmer’s vision of a just cause default rule in private-sector employment has not yet come to pass, he nevertheless foresaw developments under section 7 of the NLRA for non-union, private-sector employees, which provide a parallel avenue for “reason-specific” free speech protections for these employees.
Keywords: Mike Zimmer, reason-specific protections, public employee free speech, Restatement of Employment Law, employment-at-will, Section 7 rights, constitutionalization
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