At-Will Employment and the Limits of Employees’ Speech

Heather Smith v. Blue Cross Blue Shield of Tennessee

​Employment in America is “at will.” This means employers can fire an employee without warning, provided that the action is not based on race, gender, or a few other protected categories. A case in Tennessee tests the premise that Blue Cross Blue Shield of Tennessee was within its rights to fire employee Heather Smith in retaliation for her sending emails to state legislators about her religious objections to her employer’s Covid-19 vaccine mandates.
 
In short, what happens when the unstoppable force of a woman exercising her First Amendment right to petition the government slams headfirst into the immovable force of America’s at-will doctrine of employment?
 
A district court in Tennessee sided with the immovable force, granting a motion to dismiss out of recognition of the doctrine of at-will employment. The Tennessee Court of Appeals reversed that ruling, upholding Smith’s right to petition. The court found that “firing an at-will employee merely for writing to the Tennessee General Assembly is a bridge too far.”
 
On Thursday, this case was heard by the Supreme Court of Tennessee. (Oral arguments get interesting with the court’s grilling of Smith’s attorney, Steve Duggins, at the 35:30 mark. Credit to the Tennessee Supreme Court, by the way, for holding this case in front of an audience of high school seniors in the Boys State program.)
 
“A democracy cannot properly function if its citizens cannot freely communicate with their representatives,” Duggins told the court. Justice Jeff Bivins asked if the First Amendment protected an employee who bad-mouthed her employer to random people in a town square. Duggins agreed that person could be fired.
 
Duggins based his demonstration on the Tennessee Constitution. He reinforced arguments made by an American Civil Liberties Union amicus brief based on article I, section 23 of the Tennessee Constitution that grants a broad, positive right to petition “their representatives.” 
 
But are the First Amendment implications in this case that clear? Courts have found in the language of the First Amendment an implied right to freedom of association. Blue Cross Blue Shield has its own associational and speech rights. Employers thus have a clear right to disassociate themselves from employees who contradict their policies. If the Tennessee Supreme Court sides with Blue Cross, would that mean that the Tennessee Constitution conflicts with the First Amendment?
 
Such cases present a spaghetti-like tangle of conflicting issues. Another example:  Protect The 1st Senior Legal Advisor Eugene Volokh recently analyzed the case of a woman who took a selfie in front of the U.S. Capitol before the riots began on Jan. 6, 2021. She posted it on her Facebook account. Her employer in California falsely assumed she was one of the rioters and fired her. Was that an illicit punishment of protected political speech, or a company upholding its associational rights?
 
We look forward to seeing how in this Tennessee case the state Supreme Court untangles such strands.