Terminating the Employment Relationship

aware that an employee has engaged in speech that may be protected by the First Amendment. Therefore, if a supervisor or manager is considering disciplinary action based on something an employee may have said, s/he must first complete an appropriate investigation when conflicting information about the speech exists. In Garcetti v. Ceballos , the United States Supreme Court held that when a public employee makes a statement pursuant to his/her official duty, the employee's speech is not protected under the First Amendment because s/he is not speaking as a regular citizen on a matter of public concern. 48 Accordingly, the employee can be disciplined for his/her speech if the speech significantly disrupts the workplace. The plaintiff in Garcetti was a district attorney who had filed a lawsuit under 42 U.S.C. § 1983 alleging that he was subjected to adverse employment action in retaliation for writing a disposition memorandum in which he recommended dismissal of a case on the basis of purported governmental misconduct. The Court held that the plaintiff did not speak as a citizen when he wrote his memo. Rather, the “speech” in his memo was included within his job duties. Consequently, his speech was not protected by the First Amendment. Even if a supervisor or manager is not considering discipline for something an employee said, the agency should be alert to any potential claim for violation of First Amendment rights. An employee may attempt to show that the reason given for the discipline is pretextual and the real reason is to punish him/her for exercising his/her protected rights (e.g., involvement in a union; a critical letter to the editor published in the newspaper). 49 In such cases, courts have held that reinstatement of the employee is not warranted if the employer can demonstrate it would have reached the same decision even had the employee not engaged in exercising his/her protected rights. 50 4. W ORKERS ’ C OMPENSATION R ETALIATION Under California Labor Code section 132a, it is unlawful to retaliate or discriminate against an employee because the employee has been injured on the job, and/or because the employee has filed or has made known his/her intention to file a claim for workers’ compensation benefits. However, section 132a does not prohibit an employer from terminating an employee based on conduct or behavior independent from his/her workers’ compensation claim or injury. Also, courts have held that termination for excessive absenteeism due to an industrial injury or failure to properly report an absence may be lawful if applied non-discriminatorily and if the employer can demonstrate a business necessity. 51

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 31