Tag Archives: public employees

Employer Free Speech Rights in the Workplace

Should the right to free speech be completely protected in the workplace?

When you hear of the Constitution and the Amendments within it, one of the first things you might think of are the freedom of religion or the freedom of speech. These are both heavily discussed topics in the political eye and organized in the 1st Amendment along with the freedom of the press, and the right to petition the government. Although these are rights that are guaranteed to every U.S. citizen, there are situations in which we have to ask ourselves…am I protected by the first Amendment? A big debate that has gone on for a while is in regards to the issue of free speech in a public workplace.

Looking into the actual words of the constitution, it states “Congress shall make no law restricting freedom of speech or of the press or of religion” The key word being Congress. The kick is that while under an employer, who isn’t the government, you are not really protected under the first Amendment. Therefore, if the company you work for does not like something you say at work or outside of work that isn’t within your job duties, they are legally within their rights to take action whether that be firing you, a demotion, etc. There are definitely cases in which public workers were favored in court because of odd circumstances even when they were technically violating their employers “rules of speech” like this one. What isn’t legally within their rights is to use the fact that they can fire you for that as a loophole for discrimination of any type based on sexual orientation, religion, gender, ethnicity, etc. Employees of public workplaces aren’t entirely without hope though because under the NLRA, employees are given the right to discuss wage hours, working conditions and forming a union; so, even if your employer doesn’t like that they can’t legally fire you for it if you are a member of this board.

The main point is know your rights and read your employee handbook carefully for HR Info regarding free speech.

Sources:

“Freedom Of Speech In The Workplace: The First Amendment Revisited – Findlaw”. Findlaw, 2019, https://corporate.findlaw.com/law-library/freedom-of-speech-in-the-workplace-the-first-amendment-revisited.html.

2019, http://web.a.ebscohost.com/ehost/pdfviewer/pdfviewer?vid=5&sid=d637f44a-4d33-4d11-94ba-e10394a4e41c%40sdc-v-sessmgr06. Accessed 1 Mar 2019.

“The Supreme Court Finds No First Amendment Protection For Government Employee Speech Pursuant To Official Duties | Findlaw”. Findlaw, 2019, https://supreme.findlaw.com/legal-commentary/the-supreme-court-finds-no-first-amendment-protection-for-government-employee-speech-pursuant-to-official-duties.html.

2019, https://www.marketplace.org/2017/08/08/business/speaking-out-workplace (chose). Accessed 1 Mar 2019.

Tags: First Amendment, Free speech, Employee rights


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Are free speech rights protected at work?

Are employees’ free speech rights protected at work? It turns out it depends. Of course you can speak at work, you have to be able to communicate with the people you work with. But what can you say and not say? Work-related speech is protected by the 1st Amendment, but whether talking about issues of public concern is protected isn’t as clear. Issues of public concern are political, social, or just otherwise related to the community. (For more about public concern) So while there is no reason someone can’t say “There’s a meeting at 2:00”; but is it ok to say things like “Go back to your country” or “If you don’t go to this meeting, I will shoot you”? Probably not. In government workplaces, free speech is usually protected, while private employment is more restricted. But government workplaces also need to make workplaces run efficiently, and speech can be disruptive. So sometimes they need a way to discipline employees to function. So how do they decided what is allowed and what isn’t? A question to consider when trying to decide if something is protected is whether the person was speaking as an employee or as a citizen. From the casebook Garcetti-Pickering Balancing Test, “The first step requires determining whether the employee spoke as a citizen on a matter of public concern.” If the person is speaking as a citizen, they are typically protected by the 1st Amendment. However, if speaking as a employee doing their job, their rights can be limited. To read more about this, click here. Another issue is context. There is a test for determining whether speech at work is protected by the 1st Amendment, but for the test to even be applied, there has to be sufficient evidence that the speech cause disruption. Then, a court or group considers the need for a relaxed workplace, the time + manner + place of speech, whether the bonds between workers is damaged (enough to affect work), how related it is to public issues, context of the problem, and whether the employee can work as well as before.    A court case related to retaliation (which essentially means an employer punishes or fires an employee for something they said/did) is Lane v. Franks, 2014. After some previous trials, Franks fired 29 people, and Lane was one of them. Franks asked Lane to testify about something related to the trials, and afterwards rehired 27 people. One of the 2 people not included was Lane, who sued Franks for testifying against another employee, saying Franks violated his free speech. The lower courts sided with Franks, partly because he was protected by immunity. But eventually the Supreme Court sided with Lane because he had testified in a federal trial. To read more about this: L v. F

I think speech should be protected whenever possible, however I agree that to make things run smoothly sometimes it’s better if someone steps in, like if someone is trying to target someone specifically and/or in a way that could cause violence or harm. I like the idea that if there really is an issue in deciding whether speech is protected, there is a series of questions and steps set up as a test. But the test doesn’t cover all the specifics, and isn’t meant to either. Its purpose is to guide the decision to determining whether speech is protected. So when people actually use the test, they should of course try to be objective and consider all aspects before making a decision.

Free Speech In The Workplace

Recently free speech in the workplace has become a bigger concern among the public after a Google employee was fired for sending out a memo criticizing the company’s policy. Many were defending the former employee, explaining that the information he provided was something that should be exposed so a change can be made, and he was within his free speech rights. So, the question is are employees protected by the freedom of speech clause of the First Amendment? Generally the First Amendment only protects a citizens rights from the government. Private workplaces are allowed to create their own policies on the matter, and employees are required to follow them. An employee of a private corporation will not be protected by the first amendment if they were to say something the company considers defamatory. I agree that if something slanderous or defamatory is said towards an employer or company by an employee, the employer is well within their rights to fire them for it. However if someone has religious, political beliefs, etc, that differ from their employer, I feel the employees should be fully protected by the first amendment from losing their job for that reason. For example, in 2004, Lynne Gobbell was fired from her job simply for having a John Kerry bumper sticker, which her employer disapproved of. This is just one of many examples that puts Jeanette Cox’s quote, “to keep your job, you often can’t say what you like.”, into context. So in conclusion, Are employees protected? Generally speaking, no. There are basic things employees are allowed to discuss and still be protected, such as wages and hours, however the employers still will have final say in what is considered acceptable while under their employment.

 

Works Cited:

Free Speech Restrictions on Public Employees

Does restrictions on free speech of public employees violate symbolic speech limits to the First Amendment?

The First Amendment to the U.S. Constitution says that “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.” Whether the first amendment applies to one as a worker, it depends on if one is a public employee or privately owned business employee. The first amendment only protects those who work for the federal government, for example, school teachers and police officers. This means that if a private employer is to demote or fire an employee for supporting a particular political view, the employee cannot sue in retaliation. However, as for public employees, they are protected under this right, however there are restrictions. Do these restrictions violate the freedom of speech rights of the public employees?

There are arguments that claim that these restrictions are infringing on the rights of public employees. Some workers claim that certain phrases they say are just part of their job. The Supreme Court rules whether what a public employee says based on if they said it as a citizen or for public concern. For example, there was a case Belyeu v. Coosa County Board of Education where a teacher brought up that the school should have a tribute for Black History Month during a PTA meeting. The teacher was then scolded for raising the idea up publicly, instead of to the principle privately. At the end of the year the teachers are expected to put in their resignations, as the positions changed year to year. Every teacher in the student aide section who sought employment at the school, except for Belyeu, were rehired. Belyeu filed an action against the Coosa County Board of Education, the members of the board in their official and individual capacities, and superintendent Hardman, alleging that, in violation of 42 U.S.C. § 1983 and 42 U.S.C. § 2000e, et seq. (Title VII), the School System refused to rehire her because of her speech at the February PTA meeting and based on her gender. A lower court ruled that while the idea did relate to public concern, the school wanted to keep racial tensions from forming. The higher court overruled this because the case did not disrupt school nor did it racially divide the students (the context of her words were not going to either). In another case, a police officer was seen holding a campaign sign for a mayor. The police officer was seen holding the sign, which he was delivering to his bedridden mother. The false accusation of the police officer resulted in him receiving a demotion in order to prevent him from further voicing his views. The officer then decided to sue in retaliation for the supervisors false perceptions. The lower courts ruled that he could not sue because the supervisor was not infringing on his rights, because he had not practiced them in the first place. Higher courts then ruled and strengthened the free speech rules, arguing that an employee can sue in retaliation for engaging in protected political engagement. Public employees are prohibited from expressing matters that will potentially upset or sway others (politics/personal opinions) unless it is a matter of public concern, or are for the good of the community. Public employees may express their views as a citizen, only when they are not at work.

The answer is yes and no. While as a citizen we are all entitled to free speech and expression, at work we do not. The government has restrictions on all aspects of free speech. The idea is not to just limit what people can say, and be able to fire or demote them if they do. Putting restrictions on what people say at work is to keep people, especially school students, from being swayed from one political campaigner or party. It is for keeping certain topics from segregating or upsetting people. It is just like students at school, while we are able to say as we please, we have restrictions on what we can say to keep foulness and others from getting upset by hate speech or swear words. As a citizen, we are able to freely practice free speech and express ourselves as we wish. Public employees are still free to say as they wish, just more censored than they would if they were on their own walking down the street, or in their own home. While restrictions do technically violate free speech, it also does not because there needs to be guidelines to keep work and schools working together and efficiently.

Rights Redefined for Public Emplyees

Topic: Free-Speech Rights of Public Employees

Essential Question: Does the First Amendment protect an employee’s freedom of expression at a government workplace?

Before April 26th of 2016, public workers could be fired or demoted if their political views were known or thought to be known. However, the legality of the these actions changed on April 26th of 2016, when the Supreme Court came to a decision in the Heffernan vs. City of Paterson case. The court ruled in favor of Heffernan with Justice Stephen G. Breyer stating:  

“The government’s reason for demoting Heffernan is what counts here. When an employer demotes an employee out of desire to prevent the employee from engaging in political activity that the 1st Amendment protects, the employee is entitled to challenge that unlawful action.”

What this statement means is that a public employee cannot be fired because they are seen participating in political activities outside of the workplace and/or if their political views are known. As Heffernan was demoted because his supervisor mistakenly assumed he was supporting an opposing candidate, this ruling in Heffernan vs. City of Paterson also forbids punishing an employee suspected association of a public employees’ political views. For example, if a public employee is suspected of having democratic views and or associating with that party, they cannot be fired on those suspected views alone.

Additionally, while public employees cannot be fired or demoted based on their political actions or views outside of the workplace, at work, public employees have restrictions on their free speech. Public employees cannot voice or express their political views at work because their actions at work are considered to be a part of the government, and the government cannot openly endorse one party or candidate. The only exception to this rule is if a public employee is voicing or expressing their “public concern” which is defined as speech involving a public issue that is important to the general public, and invokes a substantial amount of independent and continuing public attention. As written by the Congressional Research Service on page 30, the case of Pickering v. Board of Education ruled that the First Amendment “protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern: ” without fear of loss of government employment. The basis of the case of Pickering v. Board of Education was that the Supreme Court needed to balance “the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it.”  

Sources
“SUPREME COURT OF THE UNITED STATES.” Journal (American Water Works Association) 29.5 (1937): 699-713. Supreme Court of the United States. Web.
“Supreme Court Strengthens Free-speech Rights of Public Employees.” Los Angeles Times. Los Angeles Times, n.d. Web. 19 Feb. 2017.
Midwest New Media, LLC  (513) 742-9150.
“Workplace Fairness.” Retaliation — Public Employees and First Amendment Rights.  n.d. Web. 19 Feb. 2017.
. “Supreme Court Free Speech Ruling Bolsters Employee Rights.” Law360. N.p., n.d. Web. 19 Feb. 2017.

Expanded Rights for All Government Employees

Topic: Free speech rights of people employed by federal, state, and local government.

Essential Question: Should employers be able to fire or demote employees because of their political views?

There are around 22 million people that work for federal, state, and local government. All of them have limited 1st amendment rights. This focuses on freedom of speech. Recently there has been a breakthrough in the move towards equal protection under the 1st amendment for employees of government. In the Washington Post they explain the few ways that employees are protected. They say, “1. the speech is on a matter of public concern 2. the speech is not said by the employee as part of the employee’s job duties, Garcetti v. Ceballos, 547 U.S. 410 (2006), and 3. the damage caused by the speech to the efficiency of the government agency’s operation does not outweigh the value of the speech to the employee and the public (the so-called Pickering balance). Connick v. Myers (1983) (p. 567).”       

In an article in the LA Times, the writer David G. Savage, explained the Supreme Court’s decision, “the Supreme Court has strengthened the rights of the nation’s 22 million public employees to protect them against being demoted or fired for supporting the wrong political candidate in the eyes of their supervisors.” This was an important decision that gives more protection to the employees. One of the more notable cases on this subject was Heffernan vs. City of Paterson. In this case a police detective was demoted because he was seen carrying a sign that opposed the mayor. The police chief strongly supported the current mayor. What happened was that the detective was delivering the sign to his mother. The lawsuit was filed in 2005 and finally reached the Supreme court in 2016. In an article from the New Yorker they talk about the decisions that were made in court. The article says, “The trial judge ruled that because Heffernan didn’t mean to get involved in the campaign, he hadn’t exercised any First amendment right, so he couldn’t bring a First Amendment claim.” Eventually the case made its way to the Supreme Court and the court ended up ruling in favor of Heffernan. My personal stance would be that employers should not be able to fire employees just because of their political beliefs whether they make them public or not.