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Workplace Speech Protections: Understanding Employee Rights

Explore court cases and legal principles related to workplace speech protections, including public concern, operational efficiency, and employee rights in the public sector. Compare Garcetti v. Ceballos and Connick v. Myers to understand the implications for employees. Consider the impact of political activities on termination decisions.

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Workplace Speech Protections: Understanding Employee Rights

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  1. Chapter 7 Workplace Speech & Association Protections

  2. The Grid

  3. The Public Workplace Connick v. Myers • πMyers an assistant prosecutor • Connick the DA • πtransferred unwillingly • πcirculated “questionnaire” re office policies • Δterminated her • πsued, claiming the termination violated her 1st amendment speech rights

  4. Connick (cont.) • Government employees do not automatically relinquish 1st amendment rights • Pickering/Connick balancing test: • Is the speech a matter of “public concern”? • Yes: protected but not absolutely • No: not protected • Δreasonably concluded that π’s actions would disrupt the office and undermine DA’s authority and close working relationships

  5. Pickering/Connick Balancing High Interest Low Interest Low Disruption High Disruption

  6. Connick Notes • What is a matter of “public concern”? • Do courts actually “balance”? • Or do employer’s interests usually trump? • Plausible showing of operational efficiency • Burdens: • π has burden of demonstrating that her speech implicates matters of public concern • π must demonstrate causation -- employer acted because of the employee’s speech • Δthen must demonstrate its actions furthered operational efficiency

  7. Garcetti v. Ceballos • Deputy DA Ceballos investigated and concluded in a memo that an affidavit used to obtain a search warrant was inaccurate • He also testified for the defense, but the court rejected the challenge to the warrant • Ceballos claimed he was subjected to retaliatory employment actions for the memo

  8. Garcetti (cont.) • π’s expressions pursuant to his “calendar deputy” duties • Statements pursuant to official duties not those of “citizens” for 1st amendment purposes • Constitution does not protect them • Taking Connick to its logical conclusion? • if you can’t discipline for official duties, efficiency suffers? • Dissent: “public concern” speech pursuant to official duties should be subject to balancing test

  9. Garcetti Notes • Compare/contrast Connick • Do Garcetti majority and dissent differ only in the deference accorded the employer? • Garcetti’s implications • Whistleblowers • Academic freedom • Freedom of association claims • Do lower level employees now enjoy greater protection than higher level workers? • NTEU: still good law?

  10. City of San Diego v. Roe • San Diego terminated Roe, a police officer, for selling sexually explicit videotapes and related internet activity • Roe sued under §1983 for violation of his 1st amendment free speech rights

  11. Roe(cont.) • π’s actions not protected: • π’s speech related to work • Even though outside the workplace • Police uniform implicated the SDPD • π’s speech not “public concern” • not subject to Pickering/Connick

  12. Roe Notes • Relation between expression workplace? • Yes: Pickering/Connick analysis • No: NTEU applicable • Is “private” speech by public employees protected even if not of public concern? • What if Roe’s videos didn’t feature his police status? • If protected at all, what scrutiny should apply in employer regulation of off-site expression? • Nonconstitutional protections • Civil service codes • Collective bargaining agreements

  13. Problem 7-1 Employee speech rights v. Antidiscrimination and harassment law

  14. The Private Workplace • State statutes

  15. Novosel v. National Ins. • Novosel employed by Nationwide for 15 years • πclaimed he was terminated for refusing to lobby for No-Fault Reform • Δ’s power to hire/fire cannot dictate an employee’s political activities • “while no PA law directly addresses the public policy question at bar, the protection of an employee’s freedom of political expression would appear to involve no less compelling a societal interest than the fulfillment of jury service or the filing of a worker’s compensation claim”

  16. Novosel Notes • Edmunson dismisses Novosel • The vast majority of courts in other jurisdictions have refused to recognize speech or association-based claims under the public policy doctrine • Might employer-coerced political activity be better addressed by the legislature? • Cf. Novosel and Borse/Rulon-Miller • The proposed Restatement • Academic Freedom

  17. Problem 7-2 Suppose SDHS is an academic department in a private university

  18. Problem 7-3 Claim based on a termination resulting from political activity away from work

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