Outten & Golden: Empowering Employees in the Workplace

Employee Retaliated Against for Blogging: Bloggers Beware

July 13th, 2009 | Ellen Simon

We have all heard about employees getting into hot water because of their blogs and online activities:

  • the Delta flight attendant fired because she posted a provocative photograph of herself in uniform without a visible name or logo
  • the Google employee who speculated online about his employer’s finances  
  • the Burger King executive who used his middle school-aged daughter’s online identity to attack a farmworkers’ advocacy group that was trying to increase pay and improve conditions for tomato pickers
  • the computer worker fired because he posted a photograph of his company’s loading dock receiving a rival’s shipment of computers

There’s even a term for it: DOOCED  — which means getting fired because of something that you wrote in your weblog.

(“Blogger Heather B. Armstrong coined the phrase in 2002, after she was fired from her Web design job for writing about work and colleagues on her blog, Dooce.com)

Now we have a new case on the subject from the Ninth Circuit Court of Appeals. In Richerson v. Beckon, the Court ruled against a schoolteacher who claimed constitutional protection for personal speech on her blog.

Here’s what happened in the case.

Tara Richerson worked as a curriculum specialist and institutional coach for the Central Kitsap School District in Silverdale, Washington.

The job required her to engage in “trusting mentor relationships” with less experienced teachers in order to give them “honest, critical and private feedback.”

Richerson wrote a blog which, according to the opinion, contained highly personal and vituperative comments about her employers, union representatives, and fellow teachers.

Although Richerson did not refer to these individuals by name, many were easily identifiable because of the description of the positions or their personal attributes. Here’s one of Richerson’s blog posts about her replacement:

Save us White Boy!

I met with the new me today: the person who will take my summer work and make it a full-time year-round position. I was on the interview committee for this job and this guy was my third choice … and a reluctant one at that. I truly hope that I have to eat my words about this guy…. But after spending time with this guy today, I think Boss Lady 2.0 made the wrong call in hiring him … He comes across as a smug know-it-all creep. And that’s probably the nicest way I can describe him…. He has a reputation of crapping on secretaries and not being able to finish tasks on his own…. And he’s white. And male. I know he can’t help that, but I think the District would have done well to recruit someone who has other connections to the community…. Mighty White Boy looks like he’s going to crash and burn

You don’t have to be a lawyer to sense that this blog was going to getting her into trouble. Sure enough, when the blog came to light, Jeanne Beckon, the Director of Human Resources received complaints and several individuals refused to work with Richerson. 

As a result, Beckon transferred Richerson out of her coaching position and into a classroom teaching position, claiming that Richerson’s blog fatally undermined her ability to enter into trusting relationships as an instructional coach. Richerson sued.

Richerson lost her case in the federal district court and the Ninth Circuit Court of Appeals affirmed.

The Court held that the “legitimate administrative interests” of the school district overweighed Richerson’s right of free speech under the First Amendment. According to the opinion:

It is abundantly clear from undisputed evidence in the record that Richerson’s speech had a significantly deleterious effect [on the performance of her duties]. [Her supervisor] provided testimony, not controverted by Richerson, indicating that several individuals refused to work with Richerson in the future.

Common sense indicates that few teachers would expect that they could enter into a confidential and trusting relationship with Richerson after reading her blog. [Her supervisor] need only make a ‘reasonable prediction’ that such disruption would occur; she need not demonstrate that it has occurred or will occur to a certainty… .

Accordingly, the district court did not err in concluding that the legitimate interests of the School District outweighed Richerson’s First Amendment interests in not being transferred because of her speech.

The decision is correct with respect to the current state of public employee speech law, according to Paul Secunda, one of the law professors who writes on this topic but the legal test should be changed. As Professor Secunda wrote:

I want to suggest that the Ninth Circuit is right on the current state of public employee speech law, but also want to point out that the most disruptive public employee speech gets the least amount of protection under the Pickering framework. It is almost like we have constitutionalized the heckler’s veto in this area of the law and that doesn’t make a whole lot of sense.

So what would I do instead, you ask? I would prefer a test which places a heavier thumb on the balance on the side of the employee, as long as the employee is talking upon a matter of public concern, which involves the heart of the First Amendment’s protection in the first place. Under this balance, I would let Richerson yap away and let other employees drown her out with their own more sensible counter-arguments.

For those who may be interested, Professor Secunda wrote an excellent law review article: Blogging While(Publicly)Employed: Some First Amendment Implications which can be found at his post on Workplace Prof Blog.

Of course only government employees have limited First Amendment protections for blogging about work. It may come as a great surprise to many that private employees have no Constitutional free speech protection at work.

But, according to Professor Secunda,  private employees may be protected under Section 7of the National Labor Relations Act. (NLRA).  Under the NLRA  employees are free to engage in concerted activities in the workplace for their “mutual aid and protection.” Therefore, according to the argument, when employees are blogging about common workplace issues, they are engaged in protected, concerted activity under the Act. It sounds like a very good argument to me.

In addition some states have off-duty conduct statutes which generally prohibit employers from terminating employees for engaging in lawful conduct outside of the workplace. Some argue that these statutes may protect bloggers(depending in part on what they are blogging about).

Other employee bloggers have argued for protection under common law tort theories such as invasion of privacy. Many employers, however, have issued policies making sure that there is no expectation of privacy on the part of the employee with respect to blogging at work.

In sum, blogging at work, and blogging about work, are really two different topics. Employee rights may differ depending on where employees are doing the blogging — on company time, or on private time — and what they are blogging about.

In both of these circumstances, employers clearly have legitimate concerns about the content of employee blogs when employee bloggers:

  • reveal confidential/propriety information
  • improperly utilize a company logo or trademark
  • harass, intimidate, and discriminate against co-employees

These concerns can and should be addressed by appropriate corporate policies which protect legitimate interests without demoralizing employees or creating a repressive workplace environment.

In the meantime, since the law is quite undeveloped and the waters uncharted in this area, both employers and employees need to use common sense and tread carefully.

Ellen Simon: Ellen Simon is recognized as one of the foremost employment and civil rights lawyers in the United States. She has been listed in the National Law Journal as one of the nation’s leading litigators. Ms. Simon has been quoted often in local and national news media and is a regular guest on television and radio, including appearances on Court TV. Ellen has been listed as one of The Best Lawyers in America for her landmark work representing individuals in precedent-setting cases. She also received regional and national attention for winning a record $30.7 million verdict in an age-discrimination case; the largest of its kind in U.S. history. Ellen has served as an adjunct professor of employment law and is an experienced and popular orator. Ellen is Past-Chair of the Employment Rights Section of the Association of Trial Lawyers of America and is honored to be a fellow of the International Society of Barristers and American Board of Trial Advocates. In additional to work as a legal analyst, she currently acts as co-counsel on individual employment cases, is available as an expert witness on employment matters and offers consulting services on sound employment practices, discrimination awareness and prevention, complaint investigation and resolution, and litigation management. Ms. Simon is the owner of the Simon Law Firm, L.P.A., and Of Counsel to McCarthy, Lebit, Crystal & Liffman, a Cleveland, Ohio based law firm. She is also the author of the legal blog, the Employee Rights Post, and her website is www.ellensimon.net. Ellen has two children and lives with her husband in Sedona, Arizona.

This article was originally posted on Ellen Simon’s Employee Rights Post on July 6th. It is reprinted here with permission from the author.

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