Privacy Issues in the Community College Workplace

The Court determined that Johnson's banners were pursuant to his "official duties" under this standard: "An ordinary citizen could not have walked into Johnson's classroom and decorated the walls as he or she saw fit, anymore than an ordinary citizen could demand that students remain in their seats and listen to whatever idiosyncratic perspective or sectarian viewpoints he or she wished to share." The United States Supreme Court in Borough of Duryea v. Guarnieri 534 , held that public employees cannot assert retaliation claims based upon the First Amendment right to petition unless their ‘petitioning” in question involves a matter of public concern. A “petition” can be a grievance or lawsuit; however, a constitutional retaliation claim will arise only if the petition involves something sufficiently important to the general public. As indicated above, free expression analysis is complex and fact-intensive. For a more in- depth discussion on freedom of expression please refer to Liebert Cassidy Whitmore’s Free Expression workbook. iii. Exception – Fair Labor Standards Act Anti-Retaliation Provision The federal Fair Labor Standards Act (“FLSA”) regulations the payment of wages including overtime wages to public employees. It contains an anti-retaliation provision, which provides that it is unlawful for an employer:

To discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the FLSA], or has testified or is about to testify in such proceeding, or has served or is about to serve on an industry committee. 535

According to the U.S. Supreme Court, this anti-retaliation provision extends to both written and verbal complaints. 536 However, the complaint must be “sufficient clear and detailed for a reasonable employer to understand it, in light of both con ent and context, as an assertion of rights protected by the statute and a call for their protection.” 537 While this requirement may be met by an “informal workplace grievance procedure,” a federal district court in Florida in 2011 refused to extend the FLSA anti-retaliation provision to a Facebook posting. 538 The court ruled that the Facebook posting was not a serious complaint but a “letting off steam” by the employee “simply voic[ing] her disagreement with her employer’s payment practices on her Facebook page.” 539 The court ruled this was not sufficient for a complaint, as an employer must have “‘fair notice that an employee ‘is in fact making a complaint about an Act violation, rather than just letting off steam.’ 540

Privacy Issues in the Community College Workplace ©2019 (c) Liebert Cassidy Whitmore 164