Workplace Privacy w/r/t Freedom of Speech Flashcards
3 types of expressive activity disputes
- Employee speech/activity at or related to work
- Employer regulation of political or religious or other associational activities
- Employer responding to employee speech/expression of outside of work and NOT related to work
Public Sector Employees
Enjoy limited constitutional and statutory protections.
If the employee-speaker speech/conduct is related back to work, then the Pickering/Connick framework applies
Pickering/Connick Two Step Test:
(1) Is speech related to matters of pubic concern? (if no -> no protection)
(2) If yes -> balance interests of Employee vs. Employer.
- (1) Plaintiffs burden to show that the speech involved is a matter of public concern.
o To determine this, look to content, form, context of the speech.
o Matter of PV involve political, social, or other concerns of community (NOT enough to have complaints about employer)
o If the employee expressions do not relate to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary - (2) IF it relates to matter of public concern, then we go to step 2 and balance: (employer bears the burden of justifying actions to restrict employee speech)
o The problem is arriving at a balance between the interests of the employee (as a citizen) in commenting upon matters of public concern VS the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees.
o Workplace disruption often used to justify actions
o Rank does matter – higher rank much more likely will have disruptive effect on workplace
o Deference to government matters. The focus tends to be on government interests.
o The more disruptive the speech, the more the analysis favors the employer.
Garcetti Categorical Rule:
When PUBLIC employees make statements pursuant to their OFFICIAL DUTIES, they are NOT speaking as “citizens” for first amendment purposes (but rather as employees), and therefore the constitution does NOT protect their communications from employer discipline. (public speech and very disruptive did not matter!)
Controlling factor here is that the expressions were made pursuant to the employee’s JOB DUTIES.
Take Away from Garcetti -> even less protection than after Pickering/Connick. Some speech that would have been protected under Picker/Connick is no longer protected.
Speech away from Work- Public Workers:
Threshold Question: Is the offensive expression related to work?
o If so: then within Pickering/Conneck realm.
o If not related to work, then three questions:
* Must offsite expression be of public concern to be protected?
* Is there a nexus between expression and employment for Pickering/Connick test to apply?
* What government interest justify regulation of expressive activity outside of work?
o Not much guidance on these questions. Lower courts grapple on these issues.
The key question in this context is often whether the government employer has a sufficiently substantial interest to justify regulating or prohibiting such off-site speech.
(1) One thing that is clear is that courts tend to side with police departments (& maybe teachers) in off-site speech and association cases.
(a) While public employees cannot be required to waive prospectively their first amendment rights, Dible demonstrates how a public employer’s framing of job responsibilities and conditions, and, accordingly, a worker’s decision to accept the position so defined, may limit the freedom the employee has in off-site expression and conduct.
Cases for Public Sector Employees
Connick:
Disgruntled employee circulated internal questionnaire that incidentally asked one
question potentially of some public concern, but overall purpose was displeasure w/ supervisors
and other internal affairs that were NOT a public concern.
* Court noted that only one question maybe implicated public concern, but in any case,
that one question didn’t outweigh the workplace disruption.
Garcetti:
this case involved a prosecutor reporting wrongdoing as part of their official duties. didn’t believe warrants were properly issued. testified that he did not think it was proper. then alleged her was retaliated against for that testimony, in violation of 1A. (Distinguished from Connick whose speech was NOT part of official duties).
Dibble:
Cop fired for doing porn videos off duty and outside of work. Court avoided first 2 questions of away from work test but found for gov’t on the 3rd. Court said that Dibles’ activities, once widely known, were disruptive and interfered with department’s mission. No clear connection back to work BUT still found that it RELATES to his work b/c it brings questions of the professionalism of the PD & the conduct was detrimental to the PD. (4) Deference by the court to the department in defining its own mission and standards that may harm the mission.
(5) Private ordering – codes of police departments might dictate what conduct falls within or outside of the workplace. “Conduct unbecoming” etc.
(1) One thing that is clear is that courts tend to side with police departments (& maybe teachers) in off-site speech and association cases.
(a) While public employees cannot be required to waive prospectively their first amendment rights, Dible demonstrates how a public employer’s framing of job responsibilities and conditions, and, accordingly, a worker’s decision to accept the position so defined, may limit the freedom the employee has in off-site expression and conduct.
The Private Workplace!
- The sources of protection for employee speech and associational preferences are very limited within the PRIVATE workplace.
a. First Amendment does NOT apply to Private employers.
b. There are some statutory protections, but most allow an employer to defend its actions by showing that they are necessary to serve a legitimate business purpose.
c. Federal labor law (NLRA – federal statue that governs private workplace) provides an important, albeit limited protection for employee expressive activity regarding workplace terms and conditions, even in the non-unionized context.
(1) First, it prohibits discharging an employee for organizing workers.
(2) Second, it protects all workers in their right under the NLRA to concerted activities for the purpose of mutual aid or protection, even apart from the formation of a union.
(i) NOTE – In order to qualify for this protection, the employee activity must be concerted—it must involve or be in preparation for group activity and involve a matter of potential common concern among employees, rather than merely activity by the worker solely on his or her own behalf.
d. Apart from these protections, a private employee’s only hopes are:
i. The public policy tort; or
ii. Contract- most contracts do not have speech protections. if there are, terms will be in the CBA.
Outside of collective bargaining and academia, private sector employees do NOT have much protection at all.
