Jerry Gomez works as an IT person at a corporate law firm, Weicker & Schmidt. A woman named Beth Toomey is murdered and Jerry quickly emerges as a suspect when some emails are found where Toomey and Gomez were supposed to meet (somewhere around the time she was murdered) about something that Gomez was very upset about. When the police confront Gomez, he has a lawyer on speed-dial and refuses to say a word (refusing to even answer the question of how he knows Toomey). This only increases suspicion.

After the police do a search of his office at W&S, his boss and a corporate VP call Gomez into a meeting. Gomez assures the firm that he did not commit any crime and says that he is perfectly willing to take a polygraph to that effect provided that is the only question asked (the concern being that the police could subpoena the results and find out more than he wants to tell them). Likewise, beyond assuring them of his innocence, he will not explain any of the circumstances surrounding his relationship with Toomey for fear that they will be subpoenaed. The firm finds this unacceptable and they issue Gomez an ultimatum: fully cooperate with the authorities or you’re fired. Gomez refuses to cooperate and is fired.

Gomez is ultimately cleared of the crime (before charges are ever filed). Gomez sues the employer for wrongful termination on the basis that they should not be able to fire him on the basis of his exerting his constitutional rights. He loses the case because he lives in an Employment-At-Will state with no bad faith exemptions. That means that the firm can fire him for whatever reason they deem fit as long as it is not one of the exceptions carved out in the law (attempting unionization, whistleblowing, race/gender/etc.) and no such exception is made.

Gomez’s lawyers go to federal court on the basis that the Constitution is irreparably harmed if people are required to forego their rights in order to keep their jobs. Especially when, as in this case, no hardship is being brought to the company beyond the initial search of his office. In fact, until this lawsuit his employer was never mentioned in any of the newspapers. If Weicker & Schmidt are allowed to fire Gomez on the basis of his exerting his 5th Amendment rights, they could similarly act on other rights. For instance, they could be “good corporate citizens” and require employees to allow the police to search their car on traffic stops. If these sorts of things catch on, the protections in the Constitution become meaningless for all but the self-employed. They employer responds that the law is the law and having freedoms granted to you in the constitution does not grant you freedom from the repercussions of utilizing those freedoms. Gomez can assert his rights or not, but W&S simply doesn’t have to employ him. High-profile people are fired or punished for utilizing their First Amendment rights all the time: Whoopi Goldberg, Don Imus, John Rocker, etc.).

So the question is… do you think that Gomez has a constitutional argument? Or, in the event that precedent suggests that he does not, that he should have one? If you think that W&S is in the right here on the basis that there is no right to continued employment simply because the Constitution does not allow the government to punish you, would you also support them if they wanted to institute the “good corporate citizen” policy of forcing employees to forego their Fourth Amendment rights against search and seizure? If not, how do you draw the line? If you agree with Gomez, do you also believe that someone who publicly makes offensive (anti-American, racist, anti-Semitic, etc.) comments should also be allowed to keep their job? If not, how do you draw the line?

Note: I know that a number of you oppose Employment-at-Will doctrine on principle, but in this scenario it is the law of the land whether you agree with it or not. This question is more of how you think the constitution should be read rather than legislative preferences. So, feel free to rip on EAW, but only if you also comment on the main thrust of the post with the stipulation that the law in Gomez’s state is what it is.

Note II: If any lawyers know how the courts have responded to challenges like this, feel free to chime in. I suspect I know, but I also wanted to know what people’s thoughts on how the courts should rule are.


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19 Responses to HypoThursday: The 5th Amendment

  1. logtar says:

    Why would he even want to work for such company anyway.

    I think as American’s we have given companies too much power. I think they should value talent more than they do. I personally would just find another job.

    The issue to me is not clear enough and it smells too much of lawyers trying to CYA rather than wanting to terminate a good employee for not cooperating.

  2. web says:

    I personally would just find another job.

    In a good economy, that might not be an issue.

    Absent protections from monopoly behavior however – and the US is getting worse and worse for that as monopoly prevention erodes and corporate consolidations continue – there is a serious argument for the protection of workers from this kind of thing.

    As the law stands in many states, merely being accused of a crime – whether guilty or innocent, whether you “cooperate” with the cops or whether you take the sane course of action legally speaking – can be enough for the employer to terminate you. If you’re bumped from a large company/multinational megacorp, that gets around and getting work can be damned, damned difficult.

    And as Will suggests, this is yet another argument against the idiocy that is “at will employment” laws.

  3. trumwill says:

    Why would he even want to work for such company anyway.

    He has a stay-at-home-wife and two kids to support. He can’t afford to be cavalier with work.

  4. trumwill says:

    And as Will suggests, this is yet another argument against the idiocy that is “at will employment” laws.

    Well, that wasn’t really my suggestion. In the overall, I think some degree of EAW (I’m coming around to supporting bad-faith exemption) is better than the complete absence of it. I just didn’t want comments to become a referendum on EAW without regard to the actual question at hand. I may write a separate EAW-specific post down the line.

    there is a serious argument for the protection of workers from this kind of thing.

    How would you make the distinction between fighting Gomez for asserting his 5th Amendment right and Whoopi Goldberg from asserting her 1st Amendment right? Or would you? I can think of a couple of distinctions, but I am curious how you would make it (if you would)?

  5. econoholic says:

    This is a terrific post. I empathize with both arguments, but obviously we must pick one.

    The critique of Gomez’s argument is that while companies could implement draconian laws requiring them to give up all their rights, practically speaking that hasn’t happened yet. I’m not aware of any company that will fire you for refusing to quarter troops.

    The critique of W&S’s argument is that they are exerting undue pressure on an employee to give up a fundamental right of one of its employees, which could result in that employee’s lifetime incarceration and/or death. Whatever the law says, this is a real harm.

    At the same time, the presence of a harm isn’t by itself a problem. If an employer fires an employee who is publicly revealed to be a Neonazi, they would be abridging that person’s first amendment rights. Surely, this is a fundamental right, and denying employment here is a harm.

    These things considered, I would favor upholding the right of the employer to determine employment. That said, if I were a legislator, I would support amending the employment-at-will law to include a carve-out for exercising one’s fourth amendment rights as they relate to crimes against third-party victims. In other words, I think the company should be allowed to fire someone for refusing to cooperate with the investigation of a burglary on its premises, but not over a burglary of someone unrelated to the company.

    Of course, I should admit that this case would still be tough because the victim was an employee of the company. Thus, the company is in some way a party harmed by the crime.

  6. Transplanted Lawyer says:

    It comes down to a policy choice made either by the legislature or the courts of Gomez’s state.

    If Gomez works in California, or a state with similar laws, he has a good claim here for what is called the Tammany tort — wrongful termination in violation of public policy. If the firing would subvert a fundamental public policy annunciated by the state, then the termination is wrongful and actionable. Here, his claim is that his termination would subvert Article I, section 24, the equivalent of the Fifth Amendment. He might win, he might not, but he easily has a good enough case to make it all the way to trial, which means it is in his former employer’s best financial interest to pay off Gomez rather than try to explain their conduct to a jury.

    If Gomez’s state lacks the common-law equivalent of Tammany, then he is in a much less desirable position. Employers are allowed to and sometimes do terminate people for off-work conduct — sleazy dating behavior or bizarre political statements that cast the employer into disrepute, as in the example our old friend the Econoholic raises.

    Because the law steps in to so many dimensions of the employment relationship — what may or may not be considered when hiring an employee, what is or is not a suitable task for an employer to give an employee, how much the employer must pay, how often the employee must be given rest and meal breaks, what kinds of equipment and conditions must be present for the employee to work, and the list goes on and on — I have come around to the mindset that while the law looks at employment through a contractual lens, it is not really a two-way contract anymore and no matter where you are the idea that employment is “at will” and a free relationship for either party is a fiction. YMMV.

  7. econoholic says:

    >the idea that employment is “at will” and a free relationship for either
    >party is a fiction.

    As with dating, employment is an area in which both parties often feel like they are the losing party subject to the whims of the other. Most of us have more experience being employees, so we have a lot of empathy for the idea that employees lack important choices in how they work. We are also uncomfortable with the rights that we give up and the arbitrariness with which employers can act.

    If you ever have even trivial experience as an employer though, you will find that the opposite feels no less true. It’s almost impossible to take advantage of people because you desperately want to hire people who you can trust not to take advantage of you.

    Similarly, guys feel screwed that they have to “do all the work” in initiating relationships and doing a lot of the pursuing while women get to sit back and reject them as royalty might send food back to the kitchen. Meanwhile, women feel that they have little or no control in the process because they have to sit back and hope that someone who isn’t a loser will actually show some interest (and good luck with that).

    Thus both of these areas of are life are filled with suspicion and a general sense that we are getting a raw deal regardless of which end of the exchange you are on. Welcome to life!

  8. cleared in hot says:

    If Weicker & Schmidt are allowed to fire Gomez on the basis of his exerting his 5th Amendment rights, they could similarly act on other rights.

    I’m not aware of any company that will fire you for refusing to quarter troops.

    I will be immediately terminated if I try to assert my Second Amendment right to “keep or bear” any firearms at work.

  9. trumwill says:

    Holic and TL, thank you for your thoughtful commentary.

    TL, I was aware of public policy exceptions in some states, though I didn’t think that they would apply here since it’s a Constitutional rather than merely a statutory issue. Now that you mention it, though, most states have – to some extent or another – these types of rules in their state constitutions as well. It doesn’t apply to Gomez’s state, but it would seem that the argument could apply in public policy exemption states.

    Holic,

    At the same time, the presence of a harm isn’t by itself a problem. If an employer fires an employee who is publicly revealed to be a Neonazi, they would be abridging that person’s first amendment rights. Surely, this is a fundamental right, and denying employment here is a harm.

    Yeah, that’s what really trips me up about a blanket “you can’t do that!” response to someone asserting constitutional rights. Some people (and not just neonazis) think that having unpopular opinions should not be grounds for firing no matter how publicly expressed. It may be the latter that’s the issue, though. If someone is publicly a neonazi, (a) that goes beyond a mere belief that we don’t choose randomly and (b) can represent actual harm to the employer if they are associated with the unpopular beliefs.

  10. trumwill says:

    Cleared, there is a difference. Your employer isn’t saying that you cannot bear arms, or that you cannot bear arms while you are an employee, but only that you cannot bear arms on their property. I’m a supporter of the Second Amendment, but that doesn’t strike me as being nearly as problematic as if they forced all of their employees to get rid of their guns.

  11. econoholic says:

    I should point out, by the way, that my instincts favor Gomez. I’m more easily persuaded by actual harms created in a particular case than arguments that start with the words “but what if that were taken to its extreme and this happened everywhere with everything ever.”

    It seems lie either way we rule, we are imposing on understandable rights that ordinarily we should try to do everything we can to protect
    – the right to avoid self-incrimination
    – the right to employ who one chooses with one’s own money

    Seemingly, one of these has to be given up. That the greater harm is to the employee would suggest a ruling in Gomez’s favor.

    On the other hand, that isn’t really the choice facing the court. Ruling in favor of the employer does *not* force Gomez to cooperate with the police. The court isn’t being asked to force Gomez to testify. It’s being asked to force Gomez to be rehired.

    I acknowledge that practically speaking, Gomez might be facing undue pressure to testify. That isn’t something the court is in a position to effectively judge though. The employer did not compel testimony. It merely fired him for not providing it. There is a difference.

    (By the way, I despise the employer in this story.)

  12. Kevin says:

    Oliver Wendell Holmes, Jr. has a great quote about this issue, in the context of public employees: “A policeman has a First Amendment right to speak his mind. He doesn’t have a First Amendment right to be a policeman.”

    I tend to agree with him. What’s the alternative? One of the first things they teach in contracts is that courts will almost never issue injunctive relief in the employment context because you cannot force people to work together.

    Another problem with your hypo is that the Fifth Amendment doesn’t apply to private employers. In fact, very few constitutional protections do. You would have to drastically expand the scope of the Constitution in order to find any sort of violation against the employer.

  13. trumwill says:

    What’s the alternative? One of the first things they teach in contracts is that courts will almost never issue injunctive relief in the employment context because you cannot force people to work together.

    The alternative to injunctive relief (meaning, I assume, that Gomez gets his job back) is a payout. I would assume. What do they do in other wrongful termination suits? When someone is fired for trying to unionize (in a state where firing someone for attempting to unionize is illegal) or a whistleblower (ditto)? I assume that this usually results in a payout, though I don’t know if that’s something forced by the courts or something that is agreed upon because both sides realize that his getting his job back is not a good idea for anybody involved.

    Another problem with your hypo is that the Fifth Amendment doesn’t apply to private employers. In fact, very few constitutional protections do.

    I knew that to be the case with the First Amendment and figured it to be true of the Fourth and Fifth, but expanding the scope is what Gomez’s lawyers are attempting to do. Or at least draw a distinction between the 1st and the 4th and 5th.. The distinction being that if an employer requires employees to incriminate themselves or allow search and seizure, they are acting in the interest of the state. They aren’t demanding the ability to search themselves, nor in this case are they demanding that Gomez tell them what happened, but rather that he tell the state and therefore it does, in a fashion, involve the relationship between the state and its citizenry in a way that the Whoopi Goldberg and Don Imus firings do not.

  14. trumwill says:

    I’m more easily persuaded by actual harms created in a particular case than arguments that start with the words “but what if that were taken to its extreme and this happened everywhere with everything ever.”

    I take the opposite view. I’m less worried about what happens to Gomez in particular as I am about the societal implications. Gomez may be tangible, but it’s also a statistical blip. It’s the possibility that it could become a systemic issue that I find far more disturbing.

    The court isn’t being asked to force Gomez to testify. It’s being asked to force Gomez to be rehired.

    See my comment to Kevin. My assumption is that Gomez is looking for a payout. His going back to work for W&S likely benefits nobody.

    The employer did not compel testimony. It merely fired him for not providing it. There is a difference.

    They did something slightly different than that, though. They issued him an ultimatum with significant negative consequences if he did not comply. That applies as compulsion, in my view. Perhaps legal compulsion, but compulsion all the same.

  15. john says:

    I’ve got nothing to say except Great Post! Really got me thinking…

  16. econoholic says:

    I’m more easily persuaded by actual harms created in a particular case than arguments that start with the words “but what if that were taken to its extreme and this happened everywhere with everything ever.”

    I take the opposite view.

    Let me explain.

    The courts seem to regularly use particular vague words to hedge how far a ruling can be taken. The courts use these terms to make sure that too far isn’t reached. Made up words like “reasonableness” and “substantially” or “critical” play a big role in determining what qualifies as actionable and what doesn’t. As an example, look at copyright law. You can excerpt parts of copyrighted material, but not large chunks. The courts have to use their judgment to determine how large of a chunk is too large to be allowable.

    The point is that there already is a mechanism to prevent extremes from happening.

    The court isn’t being asked to force Gomez to testify. It’s being asked to force Gomez to be rehired.

    See my comment to Kevin. My assumption is that Gomez is looking for a payout. His going back to work for W&S likely benefits nobody.

    All the same, this works out to telling W&S and other employers that they can’t make employment contingent on their worker’s behaviors. A payout is equivalent to saying “you shouldn’t have done that, and don’t do it again.”

    They issued him an ultimatum with significant negative consequences if he did not comply. That applies as compulsion, in my view.

    Well, “significant negative consequences” is losing his job. Kevin said it well that no one has a constitutional right to their job. Certainly, they made it harder for him to exercise his rights, but they haven’t threatened him with death or imprisonment–only unemployment. I realize that this may be a significant hardship for him, but he still had a choice in the matter, and he in fact did exercise his choice.

  17. Mike Hunt says:

    I think there is a difference between actively asserting your rights and passively asserting your rights.

    Free speech must be actively asserted, while refusing to testify and refusing to incriminate yourself are passive, since you simply have to keep your mouth shut.

    I don’t think an employer should be allowed to punish an employee for asserting a passive right. What would be next, firing an employee for refusing to give blood, or donate to UNICEF? I probably shouldn’t have written this, since it might give employers some ideas.

    As a disclaimer, I should probably state that I am a life-long resident of the People’s Republic of New Jersey.

  18. trumwill says:

    That’s a rather fantastic point, Mike. I had thought of the distinction between a corporation requiring that somebody do something (or not do something) for the benefit of the corporation versus the benefit for the state, but hadn’t made the active/passive distinction.

  19. trumwill says:

    Holic, how do you maintain that Gomez being fired is merely a negative consequence but the company having to pay out to Gomez is a directive? Both are financial incentives.

    Gomez doesn’t have a right to a job, but people do have rights not to be fired for bad reasons or to get a settlement. If not in this particular case, a company president telling his secretary to have sex with him or she’s fired. Yes, there’s a choice, but she is still being compelled to do so.

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