Privacy Issues in the Workplace

In the 1968 decision Pickering v. Board of Education , the United States Supreme Court made it clear that public employers generally cannot stifle the First Amendment rights their employees would otherwise enjoy as citizens in commenting on matters of public interest. 563 However, the Court also recognized that public employers have an interest in the effective and efficient fulfillment of their responsibilities. 564 Therefore, a public employer’s ability to maintain workplace efficiency must be balanced against a public employee’s interest as a citizen in commenting upon matters of public concern. The test in Pickering (which in 2014 the Ninth Circuit determined is applicable to speech by professors and teachers) 565 is: (1) whether the academic speech addresses matters of public concern and, if so, (2) whether the employee’s interest in the speech outweighs the educational institution’s interest in providing efficient public services. 566 Starting with Pickering v. Board of Education 567 and evolving with Connick v. Myers 568 and Garcetti v. Ceballos 569 , the United States Supreme Court has developed a balancing test to determine when a public employee can assert a First Amendment retaliation claim. Such claim can be asserted only if: (1) the public employee spoke on a matter of public concern, (2) the public employee spoke as a private citizen rather than as a public employee, i.e., if the speech was not a result of the employee’s “official duties,” and (3) if on balance, the government had no adequate justification for treating the employee as it did, i.e., the public employee’s interest as a citizen in commenting upon matters of public concern outweighs the interest of the public employer in promoting the efficiency of its public services. 570 Garcetti , however, does not apply to academic speech, which follows the test in Pickering . 571 In Dahlia v. Rodriguez, the Ninth Circuit held that a Burbank police detective could assert a First Amendment retaliation claim based on his complaints to superiors about alleged abusive interrogation tactics at his department. 572 However, compare Dahlia to Hagen v. City of Eugene 573 , where the Ninth Circuit held that a police officer who reported safety concerns to his supervisor and other departmental sergeants did not speak as a private citizen because the police department required officers to immediate report any safety hazards to their immediate supervisors. Also, in Turner v. City and County of San Francisco 574 , the Ninth Circuit held that an employee did not speak on a matter of public concern because his complaints arose out of a personal grievance, i.e., concern for his own professional advancement and dissatisfaction with his job status. In Ellins v. City of Sierra Madre 575 , the Ninth Circuit Court of Appeals determined that a police officer who serves as union president could state a First Amendment retaliation claim based on his union-related speech. The speech at issue included the officer successfully leading a vote of “no confidence” against his Police Chief, and the union’s press releases about the vote criticizing the Chief’s management style. The Ninth Circuit, while not deciding the facts, determined that there was enough evidence for the plaintiff’s case to go to a jury. The Court found that there was enough evidence, if believed by the jury, to support that the speech at issue was not an “individual personal grievance” but essentially “collective” grievances raised by the union. The Court also held that the speech was outside of the officer’s “official duties” because he was speaking as the union’s President and not pursuant to “official duties.”

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 166