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  1. The Webinar Will Begin Soon • Audio • You should hear music playing now. To LISTEN to the training, you must have computer speakers or a headset connected to your computer. The audience is muted throughout the presentation. • Questions • To ask a question, type your question in the Q&A text box, and then clickASK. • Handouts • You may download the presentation. To DOWNLOAD, click the handouts icon and select download.

  2. Freedom of Speech in the WorkplaceBalancing First Amendment Speech & Civil Rights Protections Nelson Chan, Associate Chief Counsel, Educational Outreach Annmarie Billotti, Dispute Resolution Division Chief California Department of Fair Employment & Housing www.dfeh.ca.gov

  3. First Amendment Congress shall 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. (U.S. Const., 1st Amend., emphasis added.)

  4. Freedom of Speech • In general • Public Forum – Marketplace of Ideas. • Private Forum.

  5. Workplace Freedom of Speech Public Sector v. Private Sector But…………….

  6. Limitations • Can speech be limited? • Time. • Place. • Manner.

  7. Workplace Freedom of Speech “That the speech at issue in this case occurred at plaintiffs' workplace is significant, because the Supreme Court has recognized that speech occurring in the workplace presents special considerations that sometimes permit greater restrictions on First Amendment rights.” (Aguilar v. Avis Rent a Car System, Inc. (1999) 21 Cal.4th 121, 156 (conc. opn. of Werdegar, J.).)

  8. Workplace Freedom of Speech • The Fair Employment and Housing Act and the First Amendment. • Can the FEHA limit the First Amendment?

  9. Sexual HarassmentMogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409. • Same sex. • Overnight stay in Boss’s hotel suite. • Boss said employee would receive more money if he cooperated; ordered him to play a pornographic film on the VCR; made lewd and lascivious comments about film, and asked employee how much he would charge to perform acts similar to those depicted in film. • Boss falsely implied to others that employee engaged in anal sex with him.

  10. Sexual HarassmentMogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409. • Boss referred to employee in a profane and degrading manner and inquired repeatedly into his private life, including questions regarding his prior relationships. • Very early the next morning, Boss woke employee, asked him to remove his clothes, and told him he wanted to sleep next to him. • The court noted that the First Amendment was not implicated because the FEHA protects a legitimate state interest and proscribes conduct rather than pure speech.

  11. Race & National Origin HarassmentAguilar v. Avis Rent a Car System, Inc. (1999) 21 Cal.4th 121. • Manager “verbally harassed [plaintiffs] constantly. He routinely called only the Latino drivers ‘motherfuckers' and other derogatory names, and continually demeaned them on the basis of their race, national origin and lack of English language skills.” • Supervisor conducted a discriminatory investigation into suspected theft of a calculator from a vehicle, detaining and questioning only Latino employees. Employer told employees that INS would be called if they did not cooperate. Calculator was found the following day, and supervisor apologized to plaintiffs.

  12. Race & National Origin HarassmentAguilar v. Avis Rent a Car System, Inc. (1999) 21 Cal.4th 121. • Court issued an injunction preventing manager from making harassing statements and preventing employer from conducting discriminatory investigations. • “The pervasive use of racial epithets that has been judicially determined to violate the FEHA is not protected by the First Amendment, and such unlawful conduct properly may be enjoined.” • “The injunction at issue is based upon a continuing course of repetitive speech that has been judicially determined to violate the FEHA. Thus, prohibiting Avis and Lawrence from continuing to violate the FEHA does not violate their First Amendment rights.”

  13. Harassment or Creative Process?Lyle v. Warner Bros. Television Productions (2006) 38 Cal.4th 264. • Discussion of writers’ sexual experiences. • Writers showed “coloring book” of body parts. • Writers altered episodes to reflect erotica. • Writers made masturbatory gestures. • Writers discussed their sexual fantasies about female cast members. • Writers spoke demeaningly of a female cast member.

  14. Harassment or Creative Process?Lyle v. Warner Bros. Television Productions (2006) 38 Cal.4th 264, 299-300 (conc. opn. of Chin, J.). “Where, as here, an employer's product is protected by the First Amendment─whether it be a television program, a newspaper, a book, or any other similar work─the challenged speech should not be actionable if the court finds that the speech arose in the context of the creative and/or editorial process, and it was not directed at or about the plaintiff.”

  15. Illegal Commercial ActivityPittsburgh Press Co. v. Pittsburgh Commission on Human Relations (1973) 413 U.S. 376. • Pittsburgh ordinance forbids newspapers to carry “help-wanted” advertisements in sex-designated columns except where the employer or advertiser is free to make hiring or employment referral decisions on the basis of sex. • Pittsburgh Press was charged with aiding employers with employers’ unlawful practice because it placed ads for jobs (based on employers’ wishes) in the columns captioned “Male Help Wanted,” “Female Help Wanted,” and “Male-Female Help Wanted;” and thereafter used the captions “Jobs-Male Interest,” “Jobs-Female Interest,” and “Male-Female.”

  16. Illegal Commercial ActivityPittsburgh Press Co. v. Pittsburgh Commission on Human Relations (1973) 413 U.S. 376. “Discrimination in employment is not only commercial activity, it is illegal commercial activity under the Ordinance. We have no doubt that a newspaper constitutionally could be forbidden to publish a want ad proposing a sale of narcotics or soliciting prostitutes. Nor would the result be different if the nature of the transaction were indicated by placement under columns captioned ‘Narcotics for Sale’ and ‘Prostitutes Wanted’ rather than stated within the four corners of the advertisement.”

  17. Discrimination or Stray Remarks? Reid v. Google (2010) 50 Cal.4th 512 • 52 year old Reid worked at Google as director of operations and director of engineering • Supervisor said he was "slow," "fuzzy," "sluggish," "lethargic," did not "display a sense of urgency," and "lack[ed] energy" and his ideas were "obsolete" and "too old to matter." Another said he was not a “cultural fit” • Coworkers made comments referring to him as an "old man" and "old fuddy-duddy," and a coworker made a joke that his office placard should be an "LP" instead of a "CD." 

  18. Discrimination or Stray Remarks?Reid v. Google (2010) 50 Cal.4th 512 • Holdings • Stray remarks are "statements by nondecisionmakers, or statements by decisionmakers unrelated to the decisional process itself.“ • The California Supreme Court refused to adopt the "stray remarks" doctrine because remarks by non-decisionmakers may be circumstantial evidence relevant to discriminatory actions (in the sense that hostile co-workers can manipulate a supervisor).

  19. RetaliationCozzi v. County of Marin (C.D.Cal. 2011) 787 F.Supp.2d 1047. • Plaintiffs requested the assistance of the members of the Marin County Board of Supervisors in ending the allegedly discriminatory conduct against older workers.  • Plaintiffs claim County subjected them to repeated acts of retaliation that were designed to force them out of the workplace.

  20. RetaliationCozzi v. County of Marin (C.D.Cal. 2011) 787 F.Supp.2d 1047. “A claim against a government employer for First Amendment retaliation requires that an employee demonstrate that she engaged in protected speech─that is, speech that addresses ‘a matter of legitimate public concern,’ that the employer took adverse employment action, and that her speech was a substantial or motivating factor for the adverse employment action.”

  21. Social Mediaand the First Amendment • Law develops slowly and social media is relatively new. The topic of social media and the First Amendment is far from crystal clear. •  Reno v. ACLU(1997) 521 U.S. 844 : • As a general rule and starting point, the principles of free speech apply the same on the internet as in any other public forum.

  22. Social Mediaand the First Amendment • Employees generally receive protection for social media posts from their employers. • Discharged employees may make viable claims that free speech is a fundamental right, thus enabling them to sue based on the tort of wrongful termination. (Cal. Const. art. I, § 1.) • Federal and state laws prohibiting discrimination and retaliation, as well as invasion of privacy and whistleblower laws, sometimes form the basis for an employee’s claims challenging a termination based upon social networking posts. (See Robert B. Fitzpatrick, Social Media: Employer and Employee Concerns, American Law Institute (2011).) • Many of the laws and policies covered previously in this presentation apply equally to social media posts.

  23. Social Media and the First Amendment • Hypothetical 1 A. Jane shouts “I’m pregnant!” while at work. Her boss fires her for saying that she is pregnant. She hates it when people talk about their bodies. Is this a violation of the Fair Employment and Housing Act? B. Jane, on her Facebook status, writes “I’m pregnant!” Her boss fires her for saying that she is pregnant. Is this a violation of the Fair Employment and Housing Act?

  24. Answers to Hypo 1 • Yes. The FEHA prohibits discrimination based on gender and pregnancy. • Yes. The fact that Jane announced her good news using online social media makes no difference. She cannot be fired just because she is pregnant.

  25. Social Media and the First Amendment • In September 2012, Governor Edmund G. Brown, Jr., signed into law a pair of privacy bills, making it illegal for employers and colleges to demand access to private social-media accounts. • AB 1844 (Campos) Employer use of social media. • SB 1349 (Yee) Social media privacy: postsecondary education. • Appropriately, Governor Brown announced the enactments on Twitter, Facebook and Google Plus.

  26. Social Mediaand the First Amendment Hypothetical 2 • Steven works at Job Co. The company begins to suspect that Steven is exposing trade secrets to his friends and family on Twitter. He uses a different name on Twitter. • Does Job Co. have the right to ask for Steven’s Twitter name and password so they can see what he has been sharing?

  27. Answer to Hypo 2 Answer to Hypo 2 No. Recently signed AB 1844 prohibits such inquiry.

  28. Social Media and the First Amendment – Concerted Activity • Five Star Transportation, Inc. (2007) 349 N.L.R.B. 42, 43-44, 59, enforced (1st Cir. 2008) 522 F.3d 46. • The NLRB generally prevents use of “concerted activity” as grounds for termination. • “Concerted activity” means combined effort by employees intended to improve work conditions-i.e. acting in “concert.” • Use of social media complicates this analysis: By complaining about work to all your Facebook friends, are you trying to get your fellow employees (who may also be your Facebook friends) to help you change work conditions?

  29. More on Concerted Activity from the NLRB • General Counsel Memorandum OM 11-74 (Aug. 18, 2011) Report of the Acting General Counsel Concerning Social Media Cases. • When no employees comment, or the social media is not addressed to them, it is unlikely to be “concerted activity.” • Even if the social media post is in connection with earlier, off-line concerted activities, that conversation might be considered separate if the post does not on its face target other employees to encourage action.

  30. Social Media Policies • Lutheran Heritage Village-Livonia(2004) 343 N.L.R.B. 646, 647: Employers may implement social media gag policies if they are not overly broad. • A policy is overly broad if it restricts Section 7 of the National Labor Relations Act (NLRA), which includes efforts to form a union or concerted activities.   • Policies preventing discussion of wages, “company business”, or anything that could be “deemed inappropriate” were too broad. (General Counsel Memorandum OM 11-74 (Aug. 18, 2011) Report of the Acting General Counsel Concerning Social Media Cases. )

  31. Summary • Employees have freedom of speech. • Speech can be, and is, limited in the workplace. • Civil rights laws, such as the FEHA, limit employees’ free speech rights. • Freedom of speech does not mean employers/co-workers are free to make discriminatory, harassing and retaliatory statements. Even stray remarks can be unlawful. • The law on social media is still new and developing. • Generally, assume the same protections. • CA employers cannot ask for personal social media account passwords or usernames. • Complaints about work may be concerted activity. • Policies gagging social media cannot be overly broad.

  32. Questions • Use the Q&Amenu to submit questions. • To ask a question, type your question in the Q&A text box, and then clickAsk.

  33. www.dfeh.ca.govcontact.center@dfeh.ca.gov(800) 884-1684 videophone (916) 226-5285 Thank You

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