Effective September 1, 2017, Steven Schwartz is merging his firm, Steven H. Schwartz & Associates, P.L.C. with Keller Thoma, P.C. and will become a partner in that firm.  Mr. Schwartz continues his practice as an employment and labor relations attorney, and as an arbitrator.  For further information, please go to the Keller Thoma website.

Free Speech in Public Sector Employment

Free speech:

Is a public employee's speech protected if it is not related to a matter of public concern? When should a public employer take action?

Free speech: Implications for public sector employers

On May 30, 2006, the U.S. Supreme Court, by a 5-4 vote, modified free speech in public sector employment by ruling that the First Amendment does not protect speech that is a part of the public employees’ job duties.

When does free speech apply to public sector employees?

When does free speech apply to public sector employees?

In this case, Garcetti v. Ceballos, 126 S. Ct. 1951, Ceballos, a deputy district attorney, sent a memo questioning the truth of another department employee’s witness statement in support of a search warrant. Ceballos claimed that his employer then retaliated against him because of this speech. The trial court ruled that Ceballos’ speech was not a matter of public concern, and thus not protected, as it was made as part of his job duties. The 9th Circuit Court of Appeals ruled that it was protected speech as it revealed a matter of public concern and did not disturb the daily operations of the employer.

The standard for freedom of speech in public employment was established in the case of Pickering v. Board of Ed. Of Township High School, District 391, U.S. 563 (1968). In Pickering, the Court established a balancing test for public employee speech. The Pickering standard requires the determination of whether the employee was speaking “as a citizen” on “a matter of public concern”. If so, the government entity may restrict such speech only if the entity has adequate justification for treating the employee differently than a citizen.

In Garcetti, the Court modified the rule of Pickering by ruling that whenever a public employee speaks as part of his or her job duties, the employee is not speaking as a citizen and not insulated by the First Amendment. The Court reasoned that whenever a public employee states something as part of his or her employment, the employer has the right to evaluate the statement as a function of its regulation of its workforce.

The standard for public speech now can be summed up as:

A public employee's speech is not protected when it does not relate to a matter of public concern. Public employee statements made as a part of an official job duty do not per se relate to a matter of public concern. Where speech does relate to a matter of public concern and is not a part of the employees’ official work duties, the speech must not disturb the daily operations of the employer in order to be protected by the First Amendment.

It should be noted that many interpretations of these concepts are firmly rooted in other case law. Therefore, the public employer would be wise to consult with its attorney before taking measures in regard to an employee for any statement he or she has made.

 

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