Florida Educational Negotiators seminar

1. Florida Educational Negotiators seminar Employee Speech in the Era of Social Media: Guidance on Discipline, Bargaining & Social Media Policies for Employers (Part I) October 25, 2019 Nathan Paulich & Stephanie Marchman Shareholders GrayRobinson, P.A. Tampa office: 813-273-5000 nathan.paulich@gray-robinson.com; stephanie.marchman@gray-robinson.com

2. The First Amendment • Whistleblower statutes • Statutes prohibiting retaliation • Employer speech regarding bargaining • Conclusion

3. THE FIRST AMENDMENT “Congressshall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech; or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

4. FIRST AMENDMENT SPEECH PROTECTIONS • The First Amendment protects against government infringement of free speech • Provides protection at the federal, state, and local level • Requires government action • This protection is extended to public entities, including but not limited to, public school districts and boards • Basically, the First Amendment extends to all public sector employers

5. GOVERNMENT ACTION • The First Amendment protects against infringing government action • There must be either direct government action or close nexus to government action • An example of a close nexus to government action is a private security firm contracted with the government to provide security at a federal park • A security guard asking a visitor to leave because the visitor is wearing a political candidate’s shirt is a violation of the First Amendment because the guard is acting on behalf of the government

7. EMPLOYEE MISCONCEPTIONS • Many employees, and Americans in general, mistakenly believe that the First Amendment affords limitless free speech protection • In fact, when most people are told they are prohibited from saying something, the immediate response is a reference to the First Amendment right to free speech • However, the First Amendment does not: • Protect all forms of speech • Prohibit action by private entities or individuals • Prohibit action by private sector employers

8. TYPES OF SPEECH NEVER PROTECTED • True threats • Fighting words • Calls to illegal action • Obscenity • Child pornography • Defamation • Perjury • Plagiarism • Solicitation to commit a crime • Blackmail

9. PUBLIC SECTOR EMPLOYERS • Pickering v. Bd. of Educ. Of Township High Sch. Dist. 205, 391 U.S. 563 (1968) • A teacher was terminated “for sending a letter to a local newspaper in connection with a recently proposed tax increase that was critical of the way in which the Board and district superintendent of schools had handled past proposals to raise new revenue for schools.”

10. PUBLIC SECTOR EMPLOYERS • Pickering(cont.) • Teachers have constitutional First Amendment rights “they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work.” • The Court had to balance the interests off the teacher, as a citizen, in commenting on matters of public concern, with the interests of the board, as an employer, in promoting efficient of the public service it performs through its employees.

11. PUBLIC SECTOR EMPLOYERS • Garcetti v. Ceballos, 126 S. Ct. 1951, 1958 (2006) • In determining whether a public employee’s speech is entitled to constitutional protection, the court must first determine “whether the employee spoke as a citizen on a matter of public concern. If the answer is no, the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech.”

12. PUBLIC SECTOR EMPLOYERS • Garcetti (cont.) • The Court further explained 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.” • Public sector employers may limit speech as citizens on matters of public concern when there is an “adequate justification” for treating an employee differently than other citizens.

13. Connick v. Myers, 461 U.S. 138 (1983): • Plaintiff, an assistant district attorney, upset with her impending transfer, prepared and distributed unsolicited questionnaires regarding the District Attorney’s workplace environment • On appeal, the Supreme Court held that an employee grievance, such as the questionnaires in this action, does not rise to the level of public concern required for speech to be protected by the First Amendment • A matter of public concern is one which “relat[es] to any matter of political, social, or other concern to the community.” Courts will look at the “content, form, and context of a given statement” under the totality of the record.

14. Lane v. Franks, 573 U.S. 228 (2014) • “[T]he mere fact that a citizen’s speech concerns information acquired by virtue of his public employment does not transform speech into employee—rather than citizen—speech.” • The “critical question” is “whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.”

16. First Amendment retaliation • First Amendment retaliation claims require: • (1) employee engaged in constitutionally protected speech; • i.e., (a) she was speaking as a citizen on a matter of public concern, and (b) her interests outweigh the interests of the government employer; • and (2) the speech played a “substantial or motivating role” in the adverse action. • If (1) and (2) are met, the employer can avoid liability if (3) it would have taken the same action even if there was no speech. • Akins v. Fulton Cty., Ga., 420 F.3d 1293 (11th Cir. 2005)

17. As a citizen on a matter of public concern? • Beanblossom v. Bay Dist. Schs., 265 So. 3d 657 (Fla. 1st DCA 2019) • Plaintiff alleged the district did not properly investigate her complaints, fired her for making the complaints, and failed to take action against the people she complained about. • Court held her proposed amendment to add a First Amendment claim was futile because in making the complaints “she did not speak as a citizen.”

18. Ulrey v. Reichhart, -- F.3d --, 2019 WL 5280866 (7th Cir. Oct. 18, 2019) • Facts: • Superintendent granted an adult student permission to possess cigarettes on campus in violation of policy. • Plaintiff, an assistant principal, disagreed with the superintendent’s decision and contacted the school board president. • Superintendent rebuked the plaintiff for going over his head and demanded an apology or be disciplined. The plaintiff apologized, but claims the superintendent forced her out months later.

19. Ulrey (cont.) • The plaintiff’s speech was unprotected under the First Amendment as a matter of law. • The plaintiff spoke as an employee—not a citizen—because the speech fell within her official job duties. • The Court rejected the argument that reporting the misconduct was outside of her duties, explaining there is no whistleblower carve out under the First Amendment. • The Court also rejected the argument that the speech was outside of her duties because the policy exception related to a program that was independent of the school. The program used the school building and the plaintiff still had administrative responsibilities over the program.

20. Buchanan v. Alexander, 919 F.3d 847 (5th Cir. 2019) • University received several complaints about professor: • Local School district complained about her professionalism and behavior; • Students also complained about her classroom behavior: • making comments about the student’s sexual relationship, • recording a student crying, • commenting that “a woman is thought to be a dike if she wears brown pants,” • commenting that “it was a choice to be in the program and it was not the fault or problem of the professors if any of us choose to be mommies or wives and not to expect to get an A in the class,” and • using profanity on a regular basis.

21. Buchanan (cont.) • Although academic freedom is a special concern under the First Amendment, “[s]tudents, teachers, and professors are not permitted to say anything and everything simply because the words are uttered in the classroom context.” • Professor’s speech was not protected because it was not on a matter of public concern • “Use of profanity and discussion of her sex life and the sex lives of her students was not related to the subject matter or purpose of training Pre-K-Third grade teachers.” • The speech did not serve any academic purpose.

22. Javitz v. Cty. of Luzerne, -- F.3d --, 2019 WL 5076366 (3d Cir. Oct. 10, 2019) • The Plaintiff, the director of HR, was the alleged victim of an illegal recording by a county employee who was acting as a union rep. • The Plaintiff reported the alleged crime and claims the relationship with her employer become rocky leading to her termination.

23. Javitz (cont.) • The Court found the speech was as a citizen on a matter of public concern. • Who she spoke to (the District attorney), what she spoke about (reporting a crime), and why she spoke (reporting a crime and following up on the investigation) all fell outside of the scope of her primary job duties and demonstrated citizen speech. • The status of a criminal investigation is also a matter of public concern.

24. ADDITIONAL CASES • Moss v. City of Pembroke Pines, 782 F.3d 613 (11th Cir. 2015): • Assistant Fire Chief criticized the City’s pension concessions and pay cuts. He made such critical comments to the chief, various department employees, and members of the community • The City eliminated the Assistant Fire Chief position and terminated Moss’ employment • The Eleventh Circuit held that the comments were made in furtherance of his job duties, and thus were not protected by the First Amendment. Additionally, the Eleventh Circuit found that the City’s interest in promoting efficiency outweighed Moss’ free speech interest.

25. Does it matter if speech is made as a union member? • Levitt v. Iovine, 2019 WL 1082381 (M.D. Fla. March 7, 2019) • Teacher and lead building representative for union made complaints at the request of faculty, staff, and union members. • Court held it was probable that the complaints were not part of his job duties, but rather arose from his role as a union rep. He was thus speaking as a citizen. • The complaints also related to serious safety risk, which were reported on the news. They were a matter of public concern.

26. Does it matter if speech is made as a union member? • Bain v. Wrend, 2018 WL 5980376 (D. Vt. Nov. 14, 2018) • Plaintiff, who was running for union president, invited union members to his classroom. In the meeting, he addressed concerns and criticisms of the superintendent. • The speech was as a citizen on a matter of public concern. The concerns and criticisms were big picture. They did not relate to plaintiff’s own circumstances.

27. Social media cases • Sensabaugh v. Halliburton, 937 F.3d 621 (6th Cir. 2019) • Plaintiff, a former football coach, made two Facebook posts expressing concerns about the conditions and practices of schools within the district. • The Facebook posts were from a visit he made unrelated to his job at an elementary school. The posts included pictures of the classroom and faces of several students. • District was concerned the pictures of the students faces may violate FERPA and directed the plaintiff to take down the pictures. There was no direction to otherwise remove the posts or change the content.

28. Sensabaugh(Facts cont.): • Plaintiff made another post expressing concerns about prisoners working at school. • Plaintiff refused to take down the pictures and was argumentative with his supervisors. According to the plaintiff, his job was threatened if he did not remove the pictures. He sent a text “Just let me know the next step. Fire me or deal with it.” • A letter of directive was issued. It again requested he remove the pictures. The letter clarified: “At no time did we ask you to delete any of your comments or opinions on social medial. You have the right to comment on matters of public interest on social media.” • Following the letter, plaintiff engaged in multiple acts of misconduct which was verified by an outside investigation. He was terminated.

29. Sensabaugh (cont.): • There was no dispute that the Facebook posts constituted protected speech. • Plaintiff did not contend that the student photos were protected or the request to remove them violated his rights. • The letter of counseling and reprimand were not adverse actions because there was no detrimental effect on his job, and expressly stated he could keep making social media posts. • For the termination, there was no causal connection to the protected speech. The termination was several months later and after an independent investigation found there was misconduct. At no time leading up to the termination was there a direction to remove the posts. To the contrary, the district acknowledge his right to post.

30. SOCIAL MEDIA CASES • Bland, et al v. Roberts, 730 F.3d 368 (4th Cir. 2013): • The Fourth Circuit found that liking a political candidate’s campaign page is protected speech under the First Amendment and the modern day equivalent of placing a political candidate’s yard sign in one’s yard.

31. Employee right to not speak? • Gwinnett v. Sw. Fla. Reg’l Planning Council, 2019 WL 4417645 (M.D. Fla. Sept. 16, 2019) • Issue: whether a public employee has the right not to speak about private matters? • Facts: • Following a work conference, an employee was assaulted. She confided with the plaintiff prior to contacting police. • The Plaintiff’s supervisor pressed her for information or be fired, but she refused claiming it was a private matter unrelated to work. • The Plaintiff resigned.

32. Gwinnett (cont.) • The Court dismissed the First Amendment claim in the complaint “easily” under “a straightforward Pickering analysis.” • The complaint alleged the Plaintiff “refused to speak on a matter of private—not public—concern,” and that she was retaliated for “not speaking on matters of private concern.” • The Court held that the refusal to speak on the private matter was unprotected, because Pickering requires the speech to be “as a citizen on a matter of public concern.”

33. Employer’s interest in prohibiting speechSOCIAL MEDIA CASES • Munroe v. Central Bucks Sch. Dist., 805 F.3d 454 (3d Cir. 2015) • High school English teacher posted derogatory comments such as “lazy a*****e” and “dresses like a street walker” regarding her students on her blog, causing significant parental backlash. She was terminated. • The Third Circuit upheld her termination, finding that the school district’s interest in efficiently providing a public service outweighed the teacher’s interest in making such speech.

34. ADDITIONAL CASES INVOLVING SOCIAL MEDIA • Sabatini v. Las Vegas Metropolitan Police Dept., 369 F. Supp. 3d 1066 (D. Nev. Mar. 19, 2019): • Corrections officer assigned to the housing module where suicidal inmates are housed posted insensitive cartoons and postings on Facebook regarding suicide watch and a citizen filed a complaint with Defendant regarding the posts • After a thorough investigation, the Defendant determined there were many racist and insensitive posts on Sabatini’s Facebook, as well as improper posts regarding the facility and its inmates • The Defendant terminated Sabatini’s employment for violating its social media policy and because Sabatini’s actions discredited Defendant as a law enforcement entity • The District Court found that while many of the posts regarded a matter of public concern, the potential for departmental disruption greatly outweighed Sabatini’s moderate interest in the posts

35. Employer’s interests in prohibiting speechSnipes v. Volusia Cty., 704 F. App’x 848 (11th Cir. 2017) • The plaintiff police officer posted an insensitive comment regarding Trayvon Martin on social media. While on-duty, he also sent racial and vulgar text messages to fellow officers the day after the Zimmerman verdict • Due to the racially charged nature of the speech, the proximity in time to the Zimmerman verdict, and the potential for rioting, Volusia County terminated Snipes’ employment

36. Snipes (cont.) • The Eleventh Circuit held that Volusia County had a legitimate interest in avoiding riots and protest • Volusia County’s legitimate interest trumped Snipes’ First Amendment rights • Therefore, Volusia County did not violate Snipes’ First Amendment right to free speech when it terminated his employment

37. Employer’s interest in prohibiting speech • Sabatini v. Las Vegas Metropolitan Police Dept., 369 F. Supp. 3d 1066 (D. Nev. Mar. 19, 2019): • Corrections officer assigned to the housing module where suicidal inmates are housed posted insensitive cartoons and postings on Facebook regarding suicide watch and a citizen filed a complaint with Defendant regarding the posts • After a thorough investigation, the Defendant determined there were many racist and insensitive posts on Sabatini’s Facebook, as well as improper posts regarding the facility and its inmates • The Defendant terminated Sabatini’s employment for violating its social media policy and because Sabatini’s actions discredited Defendant as a law enforcement entity • The District Court found that while many of the posts regarded a matter of public concern, the potential for departmental disruption greatly outweighed Sabatini’s moderate interest in the posts

38. Student political speech • T.S. v. Talladega Cty. Bd. of Educ., 2019 WL 3573563 (N.D. Ala. Aug. 6, 2019) • Eight grader “wrote President Donald Trump’s name on [teacher’s] classroom whiteboard two days after the 2016 presidential election. [Teacher] issued a disciplinary referral for [student] for violating a school rule limiting discussion of the election to history class. [Assistant principal] punished [student] by paddling him.”

39. T.S. (cont.) • The Plaintiff challenged: (1) the policy restricting speech about the election to history classes; and (2) his punishment for violating the policy.” • Because the Plaintiff’s speech involved “pure student expression,” the Tinker analysis applied.

40. T.S. (cont.) • The first challenge failed as a matter of law because the policy was enacted after the school heard reports of disruptions and unrest at other schools, and that students at this school were “wound up” about the election and “very loud and rowdy.” It was reasonable to forecast a substantial disruption of or material interference with school. • The school limited the speech to the venue it believed appropriate—history class—and in no way favored one viewpoint over any other.

41. T.S. (cont.) • The second argument also failed because the student’s speech caused disorder and interfered with work in the teacher’s homeroom. This was not the student’s class, and after he wrote on the board there were arguments and upset students. • There was also no evidence that the teacher/school punished the student because of a disagreement with the views the student expressed or any alleged offense for what he wrote. • The rule was neutral and applied to all candidates and positions.

42. STATUTES SUCH AS WHISTLEBLOWER AND ANTI-RETALIATION STATUTES PROTECT PUBLIC EMPLOYEE SPEECH AS WELL

43. WHISTLEBLOWER STATUTES • Florida’s Public Whistleblower’s Act (“FPWA”) • § 112.3187, Florida Statutes - Protected disclosures: • (5)(a) “Any violation or suspected violation of any federal, state, or local law, rule or regulation committed by an employee or agent of an agency or independent contractor which creates and presents a substantial and specific danger to the public’s health, safety, or welfare.” • (5)(b) “Any act or suspected act of gross mismanagement, malfeasance, misfeasance, gross waste of public funds, suspected or actual Medicaid fraud or abuse, or gross neglect of duty committed by an employee or agent of an agency or independent contractor.”

44. Whistleblower Statutes • Failure to strictly comply with whistleblower statutes may leave the employee’s speech unprotected and subject the employee to lawful termination. • Section 112.3187(6) provides “for disclosures concerning a local governmental entity, including any . . . School district . . ., the information must be disclosed to a chief executive officer as defined in s. 447.203(9) or other appropriate local official.” • The disclosure should be “in a written and signed complaint.” § 112.3187(7), Fla. Stat. (2019). • An email counts! King v. Bd. of Cty. Comm’rs., 226 F. Supp. 3d 1328 (M.D. Fla. 2016).

45. STATUTES PROHIBITING RETALIATION • Title VII, Americans with Disabilities Act, Fair Labor Standards Act, Florida Civil Rights Act, etc. • For example: • Title VII protects an individual reporting discrimination even if the individual is not the target of the discrimination and is only aware of its occurrence • If the employer terminates the individual based on his/her complaint, the individual may sue for retaliation under Title VII • It also protects speech regarding behavior that is not discriminatory so long as the reporter had an objective good faith belief that the conduct was discriminatory

46. National Labor Relations Act (persuasive for PERA?) National Labor Relations Board v. Pier Sixty, 855 F. 3d 115 (2d Cir. 2017) • In 2011, Pier Sixty’s employees began seeking union representation in what became a tense organizing campaign that included constant threats from management • Pier Sixty employee Hernan Perez was upset with his supervisor and management due to their hostility and disrespect toward the employees, including Perez • While on his authorized break, Perez posted a profanity laced rant on Facebook regarding his boss and boss’ mother

47. Pier Sixty (cont.) • Perez’s Facebook post contained the following: • “Bob is such a NASTY MOTHER F***ER don’t know how to talk to people!!!!!! F*** his mother and his entire f***ing family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!!” • Perez removed the post three days later, but not before the post was brought to the attention of Pier Sixty management • Pier Sixty terminated Perez’s employment a week later

48. Pier Sixty (cont.) • Second Circuit agreed with the NLRB’s ruling, finding that Pier Sixty violated the NLRA, citing several reasons for its determination that Perez’s post was not so egregious as to exceed the NLRA’s protection • The subject matter of the post included content regarding the upcoming union election • The election was highly contentious and the employer threatened employees who supported unionization • Pier Sixty tolerated the widespread use of profanity among its employees • The comments were made on Facebook, a website co-workers use to communicate, and the comments did not occur in the immediate presence of customers and did not disrupt the catered event • The court also noted that Perez’s post pushes the outer limits of the NLRA’s protection

49. IS THE NLRB SHIFTING ITS STANCE? • Alstate Maintenance and Trevor Greenidge, Case 29-CA-117101 (Jan. 11, 2019) • Greenidge was employed as a skycap at an airport and was responsible for assisting passengers with their luggage • Upon arrival of a soccer team, Greenidge complained to his supervisor that when “we did a similar job a year prior … we didn’t receive a tip for it” • The skycaps refused to assist in moving the team’s equipment and were discharged • The question brought before the Board was whether Greenidge’s complaint constituted concerted activity protected by the NLRA • The Board narrowed the definition of “concerted activity” when it focused on whether Greenidge’s activities were concerted when he complained in a group setting, ultimately finding that there was no indication that Greenidge’s complaint was anything more than a personal gripe to his superiors, regardless of whether it occurred in a group setting

50. Speech related to bargaining • Section 447.501, Florida Statutes • (1) It is an unfair labor practice for employers to: • (a) “interfer[e] with, restrain[], or coerc[e] public employees in the exercise of any rights guaranteed them under this part.” • (c)“refus[e] to bargain collectively” or “fail[] to bargain collectively in good faith.” • Section 447.203(17)(f), Florida Statutes • “Incidents indicative of bad faith shall include, but are not limited to, the following occurrences: . . . Negotiating directly with employees rather than with their certified bargaining agent.”