Monday, May 21, 2007

Legal Times Focuses on Labor & Employment Practice


This week's issue of Legal Times (subscription required) focuses on Labor & Employment Practice.  Articles include:

  • Mark Cheskin & Kristen Foslid, Bullied by the Boss? Companies, not state legislatures, should act to stop abusive supervisors.
  • Richard G. Vernon & Anne B. Fox, Don't You Say A Word: Corporate confidentiality policies can run afoul of labor law if not carefully drafted.
  • Martin Katz, No Intent, No Foul: Unconscious bias in employment decisions is actionable under current law.
  • Natasha Benn, Obesity Lawsuits Loom: Claims of discrimination because of weight are likely to increase in number.
  • Paul Secunda (photo above),  More Than Employees: Citizens working in government need better constitutional protection from retaliation.

Here's an excerpt from Paul's article:

Well before the Supreme Court’s April bombshell decision in Gonzales v. Carhart that upheld a federal ban on “partial-birth” abortion, Justice Samuel Alito Jr. was the decisive vote in another significant case.

This case most likely would have come out differently if Justice Sandra Day O’Connor, not Alito, were still on the Court.  Indeed, Garcetti v. Ceballos had to be argued again after O’Connor retired, apparently because the Court’s remaining members had deadlocked.

Alito’s vote with the majority in Ceballos involved not abortion, but the free-speech rights of public employees.  In Ceballos, the Supreme Court held that the First Amendment provided absolutely no protection to an assistant district attorney who alleged that he suffered retaliation when he spoke out against law enforcement corruption.  The majority held, “[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”

It has been almost a year since that decision, and with the benefit of that perspective, the ruling’s significance, though not necessarily apparent on its face, can hardly be overstated.

The case does nothing less than redefine the whole conception of what role public employees should play in ensuring the fair and efficient administration of government services.  Through its holding, the Court has now made it nearly impossible for conscientious public servants to speak out in the best interests of the public without jeopardizing their careers.


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