Attorney General Clark Files Brief in Support of Federal Employees' Right to Collective Bargaining and Free Speech

Attorney General Charity Clark, as part of a coalition of 23attorneys general, filed an amicus brief today in support of the American Federation of Government Employees' (AFGE) lawsuit defending the right of many federal employees to collectively bargain for better wages and working conditions, and to exercise their First Amendment rights to speech.

On March 27, President Trump issued an executive order titled Exclusions from Federal Labor-Management Relations Programs, which purported to ban most federal government employees from collective bargaining under the guise of national security concerns, while a " Fact Sheet " filed by the White House at the same time explained that the unions targeted by this order were ones the President views as "hostile" to his agenda. AFGE filed a lawsuit challenging the Executive Order as retaliation for constitutionally protected speech by the targeted unions and won a preliminary injunction blocking the Order by the District Court for the Northern District of California.

The Trump Administration appealed the preliminary injunction and asked the United States Court of Appeals for the Ninth Circuit to let the President enforce the Order while the case proceeds. The coalition's amicus brief argues that the preliminary injunction was correct and President Trump's Executive Order should be blocked. While a panel of judges on the Ninth Circuit has temporarily stayed, or paused, the injunction while the appeal is considered, another judge on the Ninth Circuit has called for the full, en banc court to review the propriety of the initial pause. The parties will be briefing this issue in the coming weeks.

In their amicus brief, the coalition argues that the federal government's decision to exclude these employees from collective bargaining is in fact an attempt to punish several labor unions for engaging in speech which the administration deems hostile to its agenda, in clear violation of the First Amendment.

The coalition argues that courts must be able to evaluate such acts of discrimination in their full context. Bad actors rarely outright claim to be discriminating or violating civil rights. If courts take even the flimsiest pretext for discrimination at face value and refuse to evaluate surrounding statements and context, then the barriers to proving unlawful discrimination will increase and make it unnecessarily-and unfairly-difficult to enforce anti-discrimination laws. The coalition also argues that bad actors cannot be allowed to get away with civil rights violations by pointing to hypothetical rationalizations for their unlawful behavior. Courts must evaluate these cases based on the reasons that actually existed for any actions taken and whether those reasons violate the Constitution. Allowing employers to justify unlawful actions after the fact could allow too many bad actors to escape accountability.

Joining Attorney General Clark in filing the amicus brief are the attorneys general of Arizona, California,Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Rhode Island, Washington, and Wisconsin.

A copy of the brief is available here.

CONTACT: Amelia Vath, Senior Advisor to the Attorney General, 802-828-3171