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Archive for the ‘First Amendment’ Category

Employees are not fully protected by the First Amendment

Monday, August 21st, 2017

Private employment is at will. The most productive or most loyal worker is subject to termination at any time. Employers are not required to show cause or pay severance. The only exception is getting fired for a discriminatory reason that violates state or federal law.

Recent developments have people wondering if they can be fired for speaking their mind or expressing political views, especially off the clock and away from work. In many cases, the answer is yes, when “free speech” activities reflect poorly on the company or violate company policy or employment agreements.

What happens in Vegas does not stay in Vegas

In the wake of the protests and counterprotests in Charlottesville, Virginia, some attendees were “outed” on social media and subsequently fired by their employers. Companies quickly cut ties with employees photographed in Ku Klux Klan or Nazi regalia.

But what about carrying a Confederate flag or a tiki torch to protest removal of a statute? Or conversely, what about antifa or Black Lives Matter supporters depicted in clashes with alt-right marchers?

Courts have generally upheld the right of private employers to terminate employees for conduct in their private lives that is detrimental to the company’s goodwill, such as drunken debauchery or photo ops with hate groups.

For public employees, the standard is higher – does the private conduct compromise the ability of the employee or the agency to serve the public?

Don’t bite the hand that feeds you

Employees who badmouth their employers, especially on Facebook or Twitter, should not be surprised to get pink slips. Whistleblowers are protected from retaliation for reporting criminal activity or rights violations, but within limits.

In a recent case in Minnesota, the 8th U.S. Circuit Court of Appeals upheld the firing of six Jimmy John’s employees who complained about the company’s lack of sick leave. Rather than discussing labor law, which is protected speech, they insinuated via posters and press releases that the company’s sandwiches might be tainted by workers with contagious illness.

As the fired workers were involved in a unionization effort, the National Labor Relations Board and a three-judge appeals panel ruled that the firings were essentially retaliation. The full 8th Circuit appeals court disagreed, reinforcing that employees do not have a First Amendment right to disparage their employer’s products or services.

On the other hand, some experts say James Damore may have grounds for wrongful termination after Google fired him for posting a “manifesto” about gender diversity. Despite questionable science – asserting women are biologically more “neurotic” than men – his opinion was posted on an internal forum that Google created to discuss workplace issues.

Google asserts that Damore was let go because his incendiary treatise was derogatory and discriminatory, in violation of company policy and perhaps federal law. Damore has filed a complaint with the National Labor Relations Board, saying that he acted within his rights to discuss his working environment and his employer’s discriminatory practices.

Discrimination is not a business reason

The First Amendment is a smaller shield within the context of employment. Employers have some latitude to separate from employees for objectionable speech. But terminations cannot be based on a worker’s race, national origin, gender or religion.

These cases are always dependent on legal precedent, new interpretations, enforcement priorities or recent changes in the law itself. If you believe an employer has unfairly punished or fired you for protected speech, an employment law attorney can explore your legal remedies.

This blog was originally published by Passman & Kaplan, P.C., Attorneys at Law on August 18, 2017. Reprinted with permission.

About the Authors: Founded in 1990 by Edward H. Passman and Joseph V. Kaplan, Passman & Kaplan, P.C., Attorneys at Law, is focused on protecting the rights of federal employees and promoting workplace fairness.  The attorneys of Passman & Kaplan (Edward H. Passman, Joseph V. Kaplan, Adria S. Zeldin, Andrew J. Perlmutter, Johnathan P. Lloyd and Erik D. Snyder) represent federal employees before the Equal Employment Opportunity Commission (EEOC), the Merit Systems Protection Board (MSPB), the Office of Special Counsel (OSC), the Office of Personnel Management (OPM) and other federal administrative agencies, and also represent employees in U.S. District and Appeals Courts.

9th Circuit: Garcetti Does Not Apply to Public University Employee's Teaching and Academic Writing

Tuesday, September 17th, 2013

secunda-paulFor those of you like me that follow the development of First Amendment law in the public employee space, times have recently been depressing for employee advocates in this post-Garcetti world that we now inhabit in the United States.

Now comes a pro-employee decision (yes from the 9th Circuit) concerning the application of Garcetti to a public university professor’s teaching and writing at school.  Readers may recall that the Garcetti decision itself punted on the issue of whether the new standard – no First Amendment speech protection for public employees speaking pursuant to their official duties – also applied to the university academic setting where substantial issues of academic freedom also exist (this is less of an issue in the K-12 environment where public school teachers have less discretion in conveying the curriculum and do not generally do scholarship).

In Demers v. Austin (9th Cir. Sept. 4, 2013), the Ninth Circuit considered a case in which “a tenured associate university professor (at Washington State University]. . . alleged that university administrators retaliated against him in violation of the First Amendment for distributing a short pamphlet and drafts from an in-progress book titled ‘The Ivory Tower of Babel.’” The case focuses primarily on the pamphlet, as not enough evidence was put in the record concering the book.

Judge Fletcher, writing for the unanimous panel, came to four important conclusions:

1.  Garcetti does not apply to teaching and writing on academic matters by teachers employed by      the state.  In other words, Garcetti is basically silent on this issue as mentioned above, and the 9th Circuit found that matters of academic freedom play a more prominent role in this context that requires a different legal test. (“We conclude that if applied to teaching and academic writing, Garcetti would directly conflict with the important First Amendment values previously articulated by the Supreme Court [on academic freedom elucidated in Keyishian and other cases].

2.  Instead, teaching and writing by university professors comes direclty under the Pickering balancing test, whereby the rights of the public employee to speak on matters of public concern are balanced against the employer’s right to run an efficient government service. (“We hold that academic employee speech not covered by Garcetti is protected under the First Amendment, using the analysis established in Pickering.”).

3.  So although the university professor here prepared and circulated the pamphlet pursuant to his official duties as a university professor (and thus, would normally have no First Amendment protection under Garcetti), the 9th Circuit concludes that speech was on a matter of public concern (thus satisfying the Connick test) and that there was a chance that the Pickering balancing of interests could come out in favor of the employee.  The court therefore remands on this and a few other related issues.

4.  In any event, the individual defendants in the case would not be held liable because of the unsettled nature of this area of the law.  In short, they enjoy qualified immunity.

This is not the first case finding that there is an exception to Garcetti for teaching and academic writing.  TheFourth Circuit came to a similar conclusion in the Adams public university professor case of 2011. Nevertheless, it will be interesting to see if this represents a growing consensus among the lower federal courts on this issue and whether this case will be subject to review en banc or by the Supreme Court.  My thought is that although en banc review is certainly possible, there is not yet enough division and consideration of this issue by other circuit courts to warrant Supreme Court review.

This article was originally printed on Workplace Prof Blog on September 9, 2o13.  Reprinted with permission.

About the Author: Paul Secunda is an associate professor of  law at Marquette University Law School.  Professor Secunda is the author of nearly three dozen books, treatises, articles, and shorter writings. He co-authored the treatise Understanding Employment Law and the case book Global Issues in Employee Benefits Law.  Professor Secunda is a frequent commentator on labor and employment law issues in the national media.  He co-edits with Rick Bales and Jeffrey Hirsch the Workplace Prof Blog, recently named one of the top law professor blogs in the country.

The First Amendment Protects Public Employees Right to Run for Public Office: Or At Least It Should

Wednesday, July 22nd, 2009

Public employees’ constitutional rights are important. Recent figures suggest that sixteen million Americans — more than 10 percent of the nation’s workforce — are employed by a state or local government, with another two million, approximately, employed by the federal government. With the economic downturn, even more workers are moving from the private sector to typically more secure public sector jobs. See, e.g., “Despite Downturn, Federal Workforce Grows; Stimulus Plan Expected to Increase the Ranks at State, Local Levels,” MSNBC News Report, January 31, 2009 (http://www.msnbc.msn.com/id/28952802/). Simply put, public employees are a major and growing part of our workforce. However, public employees’ rights are now vulnerable, after the recent decision in Greenwell v. Parsley, 541 F.3d 401 (6th Cir. 2008).

In Greenwell, a deputy sheriff was fired because he ran for sheriff against the incumbent. The Sixth Circuit in Kentucky held that such a firing does not implicate the First Amendment, relying on an earlier precedent from that court which said that “[t]he First Amendment does not require that an official in [an employer’s] situation nourish a viper in the nest.” Id. at 404 (citing Carver v. Dennis, 104 F.3d 847, 850-53 (6th Cir. 1997)). [1] Other circuits disagree, and rightly conclude that a public employee’s candidacy for office should be protected to at least the same degree as a public employee’s political speech. See, e.g., James v. Texas Collin County, 535 F.3d 365 (5th Cir. 2008); Finkelstein v. Bergna, 924 F.2d 1449 (9th Cir. 1991); Flinn v. Gordon, 775 F.2d 1551 (11th Cir. 1985); Washington v. Finlay, 664 F.2d 913 (4th Cir. 1981); Newcomb v. Brennan, 558 F.2d 825 (7th Cir. 1977); and Magill v. Lynch, 560 F.2d 22 (1st Cir. 1977).

The Greenwell plaintiff recently petitioned for the Supreme Court to overturn the 6th Circuit, in light of the 6th Circuit’s clear split with other Circuits on this issue. See Petition for Certiorari, 77 USLW 3619 (Apr 27, 2009) (No. 08-1328). The Supreme Court should grant review (certiorari) because “citizens are not deprived of fundamental rights by virtue of working for the government.” Connick v. Myers, 461 U.S. 138, 147 (1983). Running for office is a fundamental right.

The Supreme Court’s seminal decision in Pickering v. Bd. of Educ., 391 U.S. 563, 573, 88 S.Ct. 1731 (1968), set forth a balancing test for public employees’ First Amendment rights in the workplace. More recently, in 2006, the Supreme Court acknowledged, in Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951 (2006), “Many citizens do much of their talking inside their respective workplaces, and it would not serve the goal of treating public employees ‘like any member of the general public,’ [citing Pickering], to hold that all speech within the office is automatically exposed to restriction.” Garcetti, 126 S.Ct. at 1959. Greenwell seemingly eliminates the Pickering balance, reiterated recently in Garcetti.

There are four issues that warrant Supreme Court review of the Greenwell decision’s divergent holding: 1) whether a public employee may be prevented from speaking on a matter of public concern without balancing the interests of the employee, as a citizen, in commenting upon matters of public concern; 2) whether a public employee who communicates an intent to run for office has engaged in protected First Amendment speech; 3) whether a public employee can be fired based on the employee’s political affiliation even when that affiliation is irrelevant to the performance of the employee’s job; and 4) the depth of public employees’ First Amendment protections generally.

1. Public employees’ interests – as citizens – must be given weight.

Greenwell’s reactionary result – that the employer’s interest is all-encompassing and that the employees’ rights need not enter into the balance at all – erodes Pickering and its progeny to the point of meaninglessness. Certainly, the Supreme Court will undoubtedly find, an employee whose hostility to his employer (a public officeholder) reaches the level of insubordination, can be properly removed. See, e.g., Curran v. Cousins, 509 F.3d 36, 49 (1st Cir. 2007) (citing Stanley v. City of Dalton, Ga., 219 F.3d 1280, 1290 (11th Cir.2000)) (speech done in a vulgar, insulting, and defiant manner is entitled to less weight in the Pickering balance). But there still must be some balancing in this analysis.

2. The Court should not construe narrowly what kinds of public employees’ communications engender constitutional protection.

Contrary to Greenwell’s result, “speech on public issues occupies the ‘highest rung of the hierarchy of First Amendment values,’ and is entitled to special protection.” Connick, 461 U.S. at 145. After Greenwell and the 2006 Garcetti decision, a public employee cannot expect protection if he/she responsibly disagrees with the employer regarding a matter of public concern within the scope of his/her duties, nor if he/she tries to shift policy by dislodging the public officeholder. Essentially, this would leave a public employee devoid of the protection envisioned by Connick – unable to change a bad regime and stuck in it, without recourse, unless he/she is willing to sacrifice secure employment and the ability to provide for his/her family.

3. The right to run for office is encompassed in the right to political association.

The Supreme Court has previously held that “[t]he First Amendment protects political association as well as political expression,” and that “[t]he right to associate with the political party of one’s choice is an integral part of this basic constitutional freedom” of association. Elrod v. Burns, 427 U.S. 347, 357 (1976) (plurality opinion) (quoting Buckley v. Valeo, 424 U.S. 1, 15 (1976) (per curiam). Those who devote their life to public service should not be deprived, contrary to Connick, the basic rights provided other citizens.

4. The Supreme Court should reaffirm the breadth of public employees’ constitutional protections.

Greenwell is particularly important because, despite the favorable language in Garcetti about treating public employees like members of the general public with respect to First Amendment expression, that 2006 Supreme Court decision may have raised doubts about the depth of public employees’ constitutional rights. In Garcetti, the Supreme Court held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Garcetti, 126 S.Ct. at 1960. Public employees need the Court, in reviewing Greenwell, to reestablish the strong First Amendment protections they still have on the job. See, e.g., Givhan v. Western Line Consol. School Dist., 439 U.S. 410, 414, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979).

[1] The concurrence in Greenwell by Circuit Judge Boyce Martin invites Supreme Court review of both Greenwell and Carver. Judge Boyce’s strong language in his concurrence is compelling (rivaling Carver’s viper imagery): he described Carver, upon which Greenwell relied, as “a stray cat that hangs around the door and infests the house with fleas,” stating that Carver “continues to plague this Court’s jurisprudence. As such, we are bound by its conclusion.” Greenwell, 541 F.3d at 405-406.

 
Bryan Schwartz: Bryan Schwartz is an Oakland, CA-based attorney specializing in civil rights and employment law.

This article was originally posted on Bryan Schwartz Law on May 21, 21009 and is reprinted here with permission from the author.

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