Our nation has continued for months to react to the death of George Floyd, and this reaction includes the thousands who have participated in mass protests across the country in June 2020. Many people feel compelled to speak openly and passionately about an issue of national importance. Public employees likely wish to express their views as well, and this includes not only those working to keep local government running effectively, but the public safety personnel working to keep the peace.
The following question and answer discusses the speech rights of public employees relevant to this year’s mass protests, and how agencies can respond to the expression of their employees in different types of scenarios related to protests.
In most circumstances, public employees have a right under the First Amendment to speak freely without adverse action from their employer if three requirements are met. First, the employee must speak on an issue of “public concern.” This includes topics of importance to the nation or community at large. Second, the employee must speak outside the scope of their “official duties.” This means the employee’s speech must not constitute the activity they are expected to do as part of their job. Third, the speech must satisfy a balancing test between the government interests of the employer under the circumstances and the speech rights of the employee. If what an employee says causes or sufficiently threatens to cause disruption to the agency, then the employee will not prevail on this third step and the speech will not have First Amendment protection. As you will read below, this three-part test under First Amendment law answers many of the questions that arise in this area.
Under this First Amendment test, the subject matter of the recent protests regarding police conduct and civic equality without question constitutes one of “public concern.” Yet, by contrast, a police officer making statements in attempting to de-escalate a conflict during a protest, or speaking at a press conference hosted by her agency, would likely not have protection for his or her speech because the officer would be communicating as part of “official duties.” The agency has the right to critique the officer’s performance in dealing with the conflict, or in speaking at the press conference, without regard to First Amendment rights of the officer. But if an agency employee participates in a protest on their own time, their expressive activity is not pursuant to “official duties.” If no disruption to the agency results or is sufficiently threatened, the employee will likely have First Amendment protection for their expression.
An agency in responding to the request for time off should treat it in the same manner as it would treat such a request based on other general personal reasons. If the agency allows time off only for protected leaves including sick leave, for vacation scheduled in compliance with agency policy, or for other narrowly defined reasons, it does not need to make an exception for protest activity. But if the leave policy allows impromptu or short-notice personal days for any reason, the agency should allow the leave and indeed would risk a free speech retaliation claim in denying it based on the expressive conduct the employee intends. If the agency suffers from short staffing, it can deny the leave consistent with its current policies but has to make clear it would have denied the leave regardless of what activity the employee intended. The agency has to make clear it is not effectively punishing the employee for the view they intend to express or for the personal activity in which they plan to engage.
Under Labor Code section 432.7, except in cases involving police officer employees, an employer may not take disciplinary action against an employee based solely on the employee’s arrest. To avoid free speech concerns, the employer’s response should not constitute or appear to constitute punishment or disparate treatment based on viewpoint. If the employer investigates and confirms the employee engaged in wrongdoing, including even something on the level of a curfew violation, the employer should not impose more harsh discipline because the conduct took place in the course of expressive activity and should not create the appearance that this is the case. Doing so could lead to claims that the employee suffered more harsh discipline for having aligned with viewpoints related to the protests.
In this scenario, because the expression is on a matter of public concern, and the employee does not act pursuant to “official duties,” a balancing test applies that weighs that agency’s legitimate interests against the employee’s speech interests. Courts recognize that under constitutional free speech principles, public employees have the right to criticize their own employers and will uphold that right unless the employer can point to sufficient harm to their operations or functioning, which can include disruption in the workplace. If the employee violates certain important rules in their expression, this can serve as the basis for discipline consistent with the balancing test – these can include rules against divulging confidential information of the agency, or rules against an employee improperly representing themselves as speaking for the agency.
Aside from the First Amendment, other laws including the California Constitution to some extent protect the privacy of employees in their off-duty conduct. Employers can only control off-duty conduct in limited circumstances when an employer’s legitimate workplace interests outweigh an employee’s right of privacy in personal activities.
An agency can take action against the employees consistent with the First Amendment if the balancing test described above has been met. In supporting such action, it is important that the employer make the required showing of impact on the agency. A public employer can potentially make this showing by demonstrating that the postings harm the reputation or credibility of the agency, render the employee unable to perform his/her duties satisfactorily, impair working relationships with fellow employees, or hinder the agency in managing and directing its work force.
This depends on what workplace rules the agency currently has governing display of personal items at work, dress codes, and similar matters. Under constitutional free speech principles, a public employer can generally have such rules as long as they are “reasonable” and “viewpoint-neutral.” If the employer’s rules preclude such expression and it has consistently enforced those rules, the employer is entitled to enforce them for expression relating to the ongoing protests now. But if the employer has, for example, allowed employees to use various personal messages in their e-mail signature, then the employer will have difficulty arguing now that employees cannot use messages related to the protests (unless the employer can show disruption would result or other sufficiently important administrative reasons). Also, if the agency adopts rules now in order to block expression related to the protests, a Court could regard this as retaliation for free expression and an attempt to censor a certain viewpoint in violation of the First Amendment. (As a caveat, special rules apply to expression pursuant to state labor relations laws – the California Public Employment Relations Board (“PERB”) has held that public employees have the right to display union insignia and messages regarding working conditions, and that rules to the contrary are presumptively invalid.)
It is important to note that this summer’s mass protests involve issues related to the Fair Employment and Housing Act (“FEHA”) protected classification of race, and the subject matter of the protests is expanding to other protected classifications. Employers have to consider that their conduct related to the protests could rightly or wrongly serve as evidence in cases in which the agency’s employment practices are challenged under those laws. Sensitivity and courtesy in these matters is key, and agency employees committed to the public interests may be willing to voluntarily refrain from expression, or decline to object to their colleagues’ expression, in the interest of harmony in an important time for the organization.
An agency can do so, but should avoid appearing to tell employees what views to express or coercing employees to remain silent or express viewpoints they do not share. California has statutory laws against employers coercing political activities of employees. (Gov. Code, §§ 1101, 1102.) Appearing to force an employee to endorse a certain viewpoint on a public issue can lay the groundwork for a later claim of First Amendment violation. But reminding employees of the heightened sensitivities in the current times and how important their role is in maintaining order and positive relations with the public can benefit the agencies and the employees themselves. The employer can point out in a well-meaning way if warranted that in dealing with the public and other agencies and organizations, now is not the time for comments that can be misinterpreted, spontaneous remarks that one will later regret, or taking a tone in conversations that is likely to provoke conflict.
There are a number of others. For example, if employees are speaking about their wages, hours, and working conditions, then state labor relations laws like the Meyers-Milias-Brown Act are potentially invoked and have to be considered. Speaking out about race, religion, gender, and other protected classifications when related to conduct in the workplace can invoke the protections of anti-discrimination laws like the FEHA, and employees’ pointing out alleged illegal conduct of their employer can have the protection of statutory whistleblower laws.
In addition, Government Code section 3203 limits the rights of cities, counties and most districts to place any restriction on the “political activities” of their employees. Employers, however, can place limits on political activities of employees on work time or on the agency premises. (Gov. Code, § 3207.) Also, under state law, employees of local agencies cannot participate in political activity while in uniform. (Gov. Code, § 3206.) There are additional rules for public safety and fire personnel.
Free speech questions present complex legal issues, and it is prudent to seek advice of counsel. This is certainly true at this unprecedented time in our history when agencies must make important decisions quickly.
J. Scott Tiedemann is the Managing Partner and David Urban is Senior Counsel at Liebert Cassidy Whitmore, one of the largest public sector employment and labor law firms in California. They can be reached at stiedemann@lcwlegal.com and durban@lcwlegal.com.
This article was originally published in the September/October 2020 edition of the California Special District’s Magazine. You can read the original publication by visiting this page.