Tag Archives: Union

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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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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Filed under First Amendment, Social Media, Uncategorized

The Truth about “Right to Work”

This is a great article about the realities of “right to work” laws and how politicians use them to enshrine a right to free-riding for purely partisan reasons.

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February 28, 2013 · 7:55 pm