For the twenty-two million Americans employed by federal, state, and local governments, free speech on the job ended in 2006. The Supreme Court's watershed ruling in Garcetti v. Ceballos created a categorical rule that removes First Amendment protections when public employees speak pursuant to their "official duties." From university professors to police officers to everyday civil servants, the choice became as simple as "watch your mouth or relinquish your job." The ruling was widely reviled as a step backward in the Court's free speech jurisprudence. Even the Court acknowledged that Garcetti created uncertain and sweeping effects on academic freedom, political expression, and employer retaliation that were "not fully accounted for." Yet rather than join the extensive scholarship on Garcetti's effects, this Comment offers a consistent rule for applying it. Worse than Garcetti's harsh consequences is the uncertainty caused by rules that arbitrarily define the boundaries of free speech. That much is clear from the courts below. At bottom, consistency and clarity are key to protecting employee free speech....

This Comment clarifies the scope of official duties under Garcetti when a government whistleblower suffers employer retaliation for filing a report and refusing to retract it. Section I is a historical overview of First Amendment rights for government employees. Section II describes the confusion under current law resulting from the D.C. and Second Circuit split. Section III answers two central questions raised in the whistleblower context. First, how should courts determine whether an employee's report or complaint was made pursuant to his official duties? Asking what an employee was "paid to perform" is a more effective framework than the Second Circuit's unworkable civilian analog test. Second, precisely which duties arise in the circumstance of government whistleblowers? Particularly as plaintiffs have argued to escape Garcetti, do government employees have an official duty "to tell the truth" and a distinct civilian duty "to refuse to lie"? To the contrary, government employees have only an official duty to tell the truth. Courts must choose between faithfully applying the categorical Garcetti rule and crafting permissive loopholes. Regardless of Garcetti's policy pitfalls, this Comment provides a framework for consistently applying the Court's holding. Clarity is paramount for the nation's twenty-two million government workers, who must know where their First Amendment rights begin and where they end.

On June 9, 2011, Governor Robert Bentley signed what has been described as the "nation's toughest immigration law." The primary goal of House Bill 56 (H.B. 56), also known as the Beason-Hammon Alabama Taxpayer and Citizen Protection Act, is to drive all undocumented immigrants out of Alabama and dissuade others from coming. On September 28, 2011, Federal District Court Judge Sharon Lovelace Blackburn upheld major portions of the bill, and many provisions are now in effect. Even prior to its enactment the law seemed to be achieving its aim: Hispanics are fleeing the state in droves.

The new legislation makes it illegal to "knowingly employ, hire for employment, or continue to employ an unauthorized alien." Curiously, though, the law exempts employers of "casual domestic labor within the household" from this provision. This exemption reinforces the notion that domestic work is not "real work," and it maintains the underground status of domestic labor as an employment field. While excluding domestic workers from coverage by labor and employment laws marginalizes them and the industry they work in, applying punitive policies to domestic workers in an effort to purge the market of these workers would neither elevate their profession nor discourage illegal immigration. A better solution would be to institute policies that ensure fair wages and working conditions for domestic workers, thereby serving three public policy goals: (1) protecting workers' basic human rights; (2) making private household labor a more desirable work choice (thus encouraging documented workers to self-select into the field to satisfy demand); and (3) discouraging illegal immigration....

...This Note examines H.B. 56's employment provisions, focusing on the exemption for private household workers. Part I considers the goals of the bill in light of Alabama's shifting immigration demographics. It then looks at the bill's exemption for domestic employers, paying special attention to those persons who tend to hold private household jobs. Part II juxtaposes H.B. 56's domestic-employer exemption with other major employment laws and explains how exempting domestic servants from legislation discourages documented workers from entering or remaining in the field. Part III offers an explanation of why labor and employment legislation often exempts or otherwise fails to protect domestic workers. Finally, Part IV draws out some implications of H.B. 56's exemption for domestic employers and argues that policies that seek to protect rather than punish workers are better tailored to guarantee basic human rights, ensure that the labor demands of Alabama's working women are met, and discourage illegal immigration...

In April 2011, Theresa Kohutka, a twenty-four-year employee of the Hempstead Animal Shelter on Long Island in New York, sued the Town of Hempstead and five of her supervisors and coworkers. She claimed, inter alia, that her First Amendment rights were violated when her supervisor refused to promote her because she did not become more active in the local Republican Club after he urged her to do so.

This lawsuit should be surprising because the U.S. Supreme Court seemed to settle the issue of using political affiliation to make employment decisions in a series of three opinions more than twenty years ago. Nevertheless, cases on the issue continue to arise in significant numbers. This is an unfortunate situation because the ensuing litigation creates an expensive and unnecessary cost for cities and towns and their hard-pressed taxpayers. Because there is no end in sight, this Article suggests that it is time for the U.S. Supreme Court to revisit the issue and rethink its prior positions.

First, this Article describes the development of the patronage and civil service systems with a reflection on how they work in tandem. Then, the trio of cases, Elrod v. Burns, Branti v. Finkel, and Rutan v. Republican Party of Illinois, is reviewed. How the federal circuit courts have responded to these three cases is examined both in their immediate aftermath and in decisions in more recent cases. Finally, the Article discusses some specific examples of how the current law creating First Amendment rights against negative employment decisions for patronage appointees is not working and how it should be changed.

From the abstract:
The American labor relations system does not adequately provide employee representation to the degree demanded by employee preferences. Moving to a nonexclusive representation system would extend the right to organize and collectively bargain to many workers who cannot practically exercise their rights, but should be implemented incrementally by allowing minority unions where a majority representative is not already certified. This change to the interpretation of labor law would undoubtedly increase union membership and density, but may also reduce the conflictual nature of American labor relations and lead to labor force that is more productive for employers and more stable for employees.

...We can still invoke the principles of human rights in the settings where they do the most good. But we must also look beyond these principles to address needs that are more effectively identified and articulated by the languages of human solidarity and democratic self -government than the language of rights. Thus, the present attack on public sector unions, while posing a serious threat to the future of workers, unions, and collective bargaining, also represents an urgent invitation for us to recognize and move beyond rights discourse in search for a better way to articulate the vision of a democratic and egalitarian society.

Debates over labor rights as human rights usually arise at international and national levels. Labor clauses citing the International Labor Organization (ILO)'s "core labor standards" are found in free trade agreements between governments, in corporate social responsibility pledges by multinational companies, in World Bank lending agreements, in the United Nations Global Compact, and other global instruments. Complaints at the ILO or under trade agreements target national governments' compliance with labor standards and whether or not national labor ministries meet their obligation to "effectively enforce" labor laws.

After November 2010 elections in the USA, human rights aspects of labor policy suddenly emerged at subfederal levels. Elections in many states brought a sharp turn to conservative Republican rule. In this new climate, conflicts over workers' right took shape not at the ozone layer of high international policy, but at the oozing landfill level of local labor politics.

Governors and legislatures in Wisconsin, Ohio, Florida, Michigan, and other states moved to strip public employees of collective bargaining rights, blaming their wages and benefits for budget shortfalls. A vindictive North Carolina legislature made it unlawful for public school teachers voluntarily to contribute to their union's legislative action fund through paycheck deductions (in January 2012, a state court issued an injunction blocking the North Carolina law, saying that singling out trade unions for such a prohibition violated the state constitution's guarantee of freedom of association)....