Privacy Issues in the Workplace

command, was also part of her job as head of the program. Thus, her speech was not protected by the First Amendment.

The United States Supreme Court in Borough of Duryea v. Guarnieri, 578 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. In Maner v. County of Stanislaus and Birgit Fladager 579 , a California Eastern District court held that it was not enough for an employee to show that he engaged in free speech and disciplinary actions were taken against him for misconduct. Instead the employee must show that the disciplinary actions taken against him were substantially motivated by his free speech. This matter is currently on appeal before the Ninth Circuit. 580 In Brandon v. Maricopa County 581 , a county attorney in Arizona made comments to a newspaper reporter about the settlement of a lawsuit that the attorney had handled for the county. The comments suggest that the county had made an excessive settlement offer to avoid embarrassment for certain county officials who potentially would have been deposed. The attorney was quoted as saying: “I don’t know why they did what they did, and I’m sure they have their reasons.” The attorney was later fired, allegedly because of an altercation at work. The attorney in Brandon sued, allegedly multiple causes of action including retaliation for exercising her First Amendment rights in speaking to the reporter. A federal jury in Arizona found in favor of the attorney on her First Amendment and other claims and the county appealed to the Ninth Circuit. The Ninth Circuit found that the comments were not constitutionally protected speech. The attorney had made the comments in the course of her official duties for the county. The attorney was speaking as a legal representative for the county, and her statements related to the very matter that she was handling for the county. In addition, while an employee’s report of employee misconduct may be classified as outside of an employee’s job duties, the Ninth Circuit found that this was not the case here, where the attorney’s statements did not accuse the county of misconduct, merely implied that it had acted without professional advice. 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”) regulates 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

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