Tag Archives: Speech

Union Advocacy and Free Speech

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:

  1. The employee must be speaking as a citizen and not pursuant to their official duties;
  2. The speech must be on a topic of public concern;
  3. The employee’s free speech interests must outweigh the employer’s interests; and
  4. 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

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Decision May Broaden Speech Protection for “Teaching and Writing on Academic Matters”

When I talk with educators they are routinely surprised by how limited their free speech rights are (for previous coverage of First Amendment issues, click here).  The courts have repeatedly narrowed the broad protection provided by the First Amendment so that now public employee speech must pass a number of tests before determining whether it is protected.  However, a recent decision out of the federal 9th Circuit Court of Appeals may be changing that trend.  See Demers v. Austin, 729 F.3d 1011 (9th Cir. 2013).  Hit the jump for a discussion of the first few glimmers of change, along with a heavy helping of cautions… Continue reading

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Social Media Burns Employees… and Employers

Social media has spread through society so quickly and thoroughly that it has created difficulties for a wide range of individuals.  For employees, individuals must deal with the fact that private activities that only affected a few individuals can now be spread across the internet for all of the public, including their employers.  For courts, judges must wrestle with fitting 21st century technology into an 18th century legal system with 20th century laws.  For employers, new ways to monitor employees blur the lines between work and home and provide temptations for potentially discriminatory behavior.

The dangers to employees and employers are typified in two recent cases.  In the first, an employee finds that she may not have been as serious as she thought when she posted on Facebook “FIRE ME . . . make my day. . . .” See Tasker Healthcare Group, d/b/a Skinsmart Dermatology, NLRB Div. of Advice, No. 4-CA-94222 (May 8, 2013) (thanks to Employment Law Matters, among others, for pointing this memo out).  In the second case, an employer learned that even though it didn’t like what an employee posted, acting on it could be illegal.  See Deneau v. Orkin, No. 11-00455-B (S.D. Ala. May 20, 2013) (thanks to the Ohio Employer’s Law Blog for pointing this case out).

Hit the jump for all the double-edged-sword goodness… Continue reading

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First Amendment Principles, or in this case Principal

One of the issues that teachers ask me about the most is what First Amendment speech rights public employees have.  Most of those individuals are then shocked when they realize just how limited the right really is.  The 7th Circuit Court of Appeals recently delivered just such a shock to a principal who was fired for trying to do the right thing.  See McArdle v. Peoria Sch. Dist., No. 11-2437 (7th Cir., Jan. 31, 2013).

Read on for more information but first… From my post last week, you may recall that this week is Missouri NEA’s Legal Week, where we provide free webinars on legal subjects to Missouri NEA members.  Conveniently, one of those presentations is a full primer on First Amendment rights of public employees that I put together with my coworker, Susan Wagner.  A recording of the presentation is available here and I definitely recommend checking it out to help understand all of the aspects of the case.

Without further ado, on to the case… Continue reading

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