#12322 - Employee Speech And Privacy - Employment Law

It is well settled that a State cannot condition public employment on a basis that infringes the employee’s constitutionally protected interest in freedom of expression. Ceballos.

Rutan v. Republican Party: The First Amendment forbids government officials to take adverse employment action against (or to fail to take beneficial employment action in favor of) public employees solely because they are not supporters of the political party in power.

• Conditioning public employment benefits on the provision of support for the favored political party “unquestionably inhibits protected belief and association.”

  • Concern that this system will lead to coerced belief

• Government’s interests asserted in support of the patronage system fail to justify the burden on First Amendment rights because patronage dismissals are not the least restrictive means of fostering those interests

  • The government can ensure employee effectiveness and efficiency by discharging staff members whose work is inadequate

• The Court recognizes an exception to its rule for “policymaking” employees, who can be discharged for political reasons; the government’s interest in ideological cohesiveness is much stronger for employees of this nature than for lower-level staff

• It is not relevant that the employees challenging the patronage may lack a legal entitlement to the position for which they are denied; nor is it relevant that the employees in this case are not subject to punitive action, but merely denied advancement

• DISSENT (Scalia): The choice between patronage and the merit principle is not so clear that I would be prepared to chisel a single, inflexible prescription into the Constitution.

Note: Implicit in the Court’s opinion is the idea that the employer (or potential employer) is in a position to exercise coercive power over the employee (or potential employee). Were the bargaining power between employees and employers equal, there would be no risk of “coerced belief.”

Ceballos: “When public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”

• General principles:

  • The First Amendment limits the ability of a public employer to leverage the employment relationship to restrict the liberties employees enjoy in their capacities as private citizens. So long as citizens are speaking about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.

  • Pickering: Two inquiries guide interpretation of constitutional protections according public employee speech:

    • Whether the employee spoke as a citizen on a matter of public concern. If the answer is no, the employee has no First Amendment action.

    • Whether the government entity had an adequate justification for treating the employee differently from any other member of the general public. If not, the employee will prevail

• First Amendment protects some expressions related to the speaker’s job, and some expressions made at work. But the First Amendment does not protect expressions made pursuant to official duties (e.g., expressions in official memoranda).

  • Restricting this speech does not infringe any liberties that the employee might have enjoyed as a private citizen

• A functional test will be used to determine whether a speech act is pursuant to an officer’s official duties; this will prevent government employers from abusing this rule by drafting excessively broad job descriptions.

Novosel: An employee has a cause of action for wrongful discharge in violation of public policy where he is discharged for refusing to participate in a political lobbying effort with which he does not agree.

• Concern that employer is using coercive power to hire and fire (cf. Rutan) to coerce its employees to engage in political speech

• Concern that employer is using its economic power to distort the political process; but see Citizens United

O’Connor v. Ortega: Searches and seizures by government employers or supervisors of the private property of their employees are subject to the restraints of the Fourth Amendment; these searches must be (1) justified at their inception and (2) reasonable in scope.

• The Court adopts a two-part inquiry for determining whether a search of a government employee’s property is constitutional.

  • First, it is necessary to determine whether an employee has a reasonable expectation of privacy in the property searched.

    • This must be done on a case-by-case basis

  • Second, if an employee has a reasonable expectation of privacy, it is necessary to balance the employees’ legitimate expectations of privacy against the government’s need for supervision, control, and the efficient operation of the workplace

    • No warrant requirement; no proximate cause requirement

    • Court declines to address whether individualized suspicion is necessary

• Held: Where a public employer intrudes into the constitutionally protected privacy interests of its employees for non-investigatory, work-related purposes or for investigations of work-related misconduct, the Fourth Amendment requires that the search be (1) justified at the inception and (2) reasonable in scope.

  • A search will be “justified at its inception” when there are reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of work-related misconduct

  • A search will be permissible in scope when “the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the nature of the misconduct”

K-Mart v. Trotti: An actionable “invasion of privacy” is “the intentional intrusion upon the solitude or seclusion of another that is highly offensive to a reasonable person.” Offensiveness is measured objectively.

• Where the employee purchases and uses his own lock on an employer’s locker, with the employer’s knowledge, the fact finder is justified in concluding that the employee manifested, and the employer recognized, an expectation that the locker and its contents would be free from intrusion.

Brunner: Court refuses to grant wrongful discharge action to employee terminated for performing volunteer work for AIDS Foundation in her free time.

Rulon-Miller: Where employer stated in official memorandum that it would not make employment decisions based on off-the-job behavior not impacting the employee’s performance, the employer could not terminate an employee based on off-the-job behavior not impacting her performance.

• The duty of fair dealing (implied-in-law in every contract) requires an employer to abide by its own rules and regulations.

• Employee could not be terminated because of her romantic involvement with an employee at a rival firm, where the jury found no evidence that this relationship adversely affected her performance or the wellbeing of the company.

Jury award for IIED upheld. Manager took actions intended to emphasize that employee was powerless and to humiliate and degrade her. Acted in bad faith.

Skinner v. Railway Labor Executives: Blood and urine testing of railroad workers after accident constitutes a search under the Fourth Amendment, but may be conducted without a warrant or individualized suspicion, in light of the government’s compelling interest in ascertaining the cause of an accident.

• Ordinarily, an employee consents to significant restrictions in his freedom of movement where necessary for his employment; thus, the requirement that employees travel to testing facilities is a minimal intrusion.

• Expectations of privacy of employees participating in an industry that is regulated pervasively to ensure safety are diminished.

• DISSENT (Marshall): I believe the Framers would be appalled by the vision of mass governmental intrusions upon the integrity of the human body that the majority allows to become a reality

Sánchez v. Georgia Gulf Corp. At-will employee cannot be discharged on the basis of a positive result on a drug test if employer did not comply with statutory safeguards designed to assure accuracy of results.

• The state statute sets forth a “comprehensive procedure that employers must follow in conducting drug testing” of their employees

• The fact that employee was at-will is irrelevant; firing on the basis of an inadequate drug test is unlawful as a matter of public policy

Thatcher: (1) An employer may be held liable for the intentional acts of its employees if the employer either authorized or ratified the act, or the act was committed within the scope of employment; (2) To prevail on a theory of negligent hiring, the victim of an employee’s tort must prove that (a) the employee had a propensity for violence; (b)...