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Total Articles: 13

Dear Littler: Can A Boss Fire Someone for Off-Duty Political Activities?

Dear Littler: I saw one of my employees on the local news the other night participating in a political rally over the weekend. We try to maintain a tension-free workplace. Can I discipline him for this conduct? Can I at least institute a policy prohibiting this kind of behavior going forward?

Election 2016: Political Speech and Activity in the Workplace

On November 8, voters across the country will head to the polls to determine the next president. Some states have already begun the early voting process. Voters will also decide who fills various U.S. congressional seats, who will represent them at the state and local levels, and which ballot initiatives will be approved. As voters contemplate their important choices, the heated rhetoric on the campaign trail will undoubtedly make its way into the workplace. For instance, in June 2016, 26% of responding human resources professionals reported an increase in the amount of employee political concern and expression this election season.1

Public Employer May Not Retaliate Against Employee Based on Perception that He Engaged in Political Activity

On Tuesday the U.S. Supreme Court held that a public employee could sue his employer for retaliation where the employer demoted him for engaging in constitutionally-protected political activity, even though the employer was factually mistaken about the employee’s actual involvement in the activity.

Supreme Court: Government Employer’s Incorrect Belief About Employee’s Activity Matters in First Amendment Analysis

A government employer can violate an employee’s constitutional rights by acting based on incorrect information that, if true, would violate the U.S. Constitution, even though the employee was not actually exercising his or her constitutional rights, the U.S. Supreme Court has held in a 6-2 decision. Heffernan v. City of Paterson, No. 14-1280 (Apr. 26, 2016).

Perceived Political Expression Protected By First Amendment, Supreme Court Says

In a 6-2 decision, the Supreme Court today held that the First Amendment of the U.S. Constitution protects both actual and perceived political speech and expression by public employees. The unsurprising decision squares with decisions from several lower appellate circuit courts, and should serve as a warning sign for public sector employers. Heffernan v. City of Paterson.

U.S. Supreme Court Unanimously Holds That Public Employee’s Truthful Subpoenaed Testimony Was Protected Speech Under the First Amendment

It has long been recognized that public employees are not excluded from First Amendment protection, and for more than 40 years the courts have wrestled with balancing the free speech rights of a public employee against the interest of the public employer in controlling the operation of the workplace to ensure efficient delivery of public services. Under Supreme Court precedents, the test for determining whether the speech is protected by the First Amendment requires an initial showing that the employee spoke as a “citizen” on a matter of “public concern.” These terms of art are significant, because if the public employee’s speech is pursuant to the employee’s “official duties,” then the speech is not entitled to First Amendment protection. In yesterday’s unanimous decision in Lane v. Franks, the Court applied this firmly-established legal standard, and ruled that a public community college employee’s truthful subpoenaed testimony in a public corruption trial was protected speech under the First Amendment. Although the employee’s testimony addressed information he learned during the course of his employment, testifying in court proceedings was not within the scope of his ordinary job duties, and therefore his testimony was protected even though it concerned those duties.

Supreme Court Rules Public Employee’s Sworn Testimony Is Protected

Declaring that “public employees do not renounce their citizenship when they accept employment,” the Supreme Court of the United States held today that the First Amendment protects a public employee’s truthful sworn testimony, compelled by subpoena. According to Justice Sotomayor, who delivered the opinion for a unanimous Court in Lane v. Franks, the issue turned on whether the employee’s speech was made pursuant to his ordinary job duties or whether the “employee spoke as a citizen on a matter of public concern.” The Court found that the testimony of the employee in this case was made as a citizen on a matter of public concern and that “public employers may not condition employment on the relinquishment of constitutional rights.” Lane v. Franks, No. 13-483, Supreme Court of the United States (June 19, 2014).

Public Employee’s Testimony Entitled to First Amendment Protection

In Chrzanowski v. Bianchi, the Seventh Circuit considered the line between private speech of public employees on a matter of public concern, which is protected under the First Amendment, and speech made pursuant to a public employee’s professional duties, which is not protected.

Political Speech At Work

With the election just a month away, everyone seems to have strong opinions about the candidates and issues. Inevitably, these opinions will come up during conversations on the jobsite and can be disruptive and interfere with productivity. They also can expose employers and employees to legal risks if they do not fully understand the laws that govern political speech at work.

Teacher’s Retaliation Suit Against School District For Exercising Right of Free Speech Involved a Matter of Public Concern

In Gschwind v. Heiden, the Seventh Circuit Court of Appeals found that the dismissal of a teacher’s suit against a school district for retaliation for exercising free speech rights involved a matter of public concern and, thus, summary judgment should not have been granted against the teacher.

Free Speech is Front and Center

This election year, it seems everyone has strong opinions about the candidates and issues. Inevitably, these opinions will come up during conversations in the workplace. These conversations may disrupt the workplace, but employers need to understand the legal risks of limiting such speech before they cross the line and violate employee rights. Here is a brief outline of some of the laws that regulate employer' attempts to curtail employee free speech.

High Court Limits Public Employee First Amendment Retaliation Claims

In Burough of Duryea v. Guarnieri, one of several important rulings issued this week, the United States Supreme Court limited retaliation claims by public employees under the Petition Clause of the First Amendment to cases in which the employee’s petition relates to matter of “public concern."

School District Not Liable For School Employees’ Statements About Bus Driver

A recent Illinois Appellate Court decision highlights the protections that courts recognize for statements by public employees about coworker’s misconduct. The case should reassure school district employees who in good faith report misconduct by other employees that their reports will not subject them or their school district to liability for defamation.
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