Thursday, March 16, 2023

6th Circuit confirms that private employers can do private employer things

Four employees of the J.M. Smucker Company sought religious exemptions from the company's Covid vaccine mandate. When the company refused, they sued, claiming that the mandate infringed on their First Amendment religious liberties.

The 6th Circuit easily concluded that the 1st Amendment does not apply to J.M. Smucker or limits its power to regulate its workplace as it is a private company, not a federal, state, or local government.

Constitutional guarantees conventionally apply only to entities that exercise sovereign power, such as federal, state, or local governments…. Smucker's may be a big company. But it is not a sovereign. Even so, did Smucker's become a federal actor—did it exercise sovereign power?—for purposes of this free-exercise claim when it sold products to the federal government and when it imposed the vaccine mandate because the federal government required it to do so as a federal contractor? No…. When a private company complies with federal law, that does not by itself make the company a government actor. Else, every regulated private company would be a public entity, a conclusion that would come as a surprise to many and that would alter heaps of foundational precedents going back to the founding.

In other words, the constitution limits the power of state actors, not private businesses. Indeed, private businesses can do lots of things regarding its workplace and its employees that the government cannot. This list includes:

  • Limiting employee speech (subject to the NLRA's rules on employee protected concerted activity)
  • Interviewing employees without Mirandizing them
  • Allowing employees to incriminate themselves
  • Disciplining or terminating without due process
  • Searching desks, lockers, computers and other spaces at work, with or without probable cause (but double-check state law)
  • Prohibiting firearms at work

Thank you, 6th Circuit, for reaffirming that private employers can still do private employer things.