2.118 - D. Freedom Of Association

• Jurisdiction: New York

d. Freedom of Association

The First Amendment right of freedom of association can be a basis for challenging the termination of an employee for participating in organizational activities including union activity.¹⁴⁸⁹ In Boddie, the court held that the “public concern” standard was inapplicable to a firefighter’s free association claim based on union activity. However, other courts have applied the “public concern” standard to free association claims.¹⁴⁹⁰

The right of association, protected by the First Amendment, includes certain constitutional protections for public employees who join labor unions and engage in advocacy on behalf of union members.¹⁴⁹¹ In State Employees Bargaining Agent v. Rowland,¹⁴⁹² the Second Circuit concluded that a public employer’s adverse employment action based upon employees’ union membership is subject to the same strict scrutiny that is applied to freedom of association cases involving political association.¹⁴⁹³

However, other court decisions have narrowly construed the applicability of the First Amendment to the right of public sector employees to engage in union activities.¹⁴⁹⁴ In fact, the Eleventh Circuit granted qualified immunity to individual county defendants who demoted a public sector union activist based on the content of a questionnaire sent to candidates for public office.¹⁴⁹⁵ The Seventh Circuit in Stagman v. Ryan¹⁴⁹⁶ affirmed the dismissal of a First Amendment claim by a state worker alleging that he had been retaliated against for various union activities. In its decision, the court assumed that the speech was protected, but reaffirmed that not all union activities are protected by the First Amendment.¹⁴⁹⁷

In Melzer v. Board of...