I have written about the free speech rights of public employees a few times now but a recent case from a federal court in New York creates an important precedent for union members advocating on their coworkers’ behalf. See Pekowsky v. Yonkers Bd. of Educ., No. 12 Civ. 4090 (S.D.N.Y. May 29, 2014). Before getting into the details of Pekowsky, it’s important to understand the general landscape of public employee First Amendment rights. The courts have taken several opportunities to limit general free speech rights in the somewhat unique scenario where the government is also an individual’s employer. In order for a public employee’s speech to be protected under the First Amendment (and therefore protect them from any discipline for that speech), the speech must meet four tests:
- The employee must be speaking as a citizen and not pursuant to their official duties;
- The speech must be on a topic of public concern;
- The employee’s free speech interests must outweigh the employer’s interests; and
- The speech must be the motivating factor of an adverse employment action.
At issue in Pekowsky, was how these tests would apply to a union representative disciplined after advocating for his coworkers. Hit the jump for more… Continue reading