Monday, October 15, 2007
A recent public employee free speech case, O'Dea v. Shea, et al, (D. Conn. 2007), discussed by Dan Schwartz at the Connecticut Employee Law Blog last week is not surprising in analysis or outcome post-Garcetti. As Dan explains it:
The court granted a state agency's motion for summary judgment where the employee claimed that she was given a poor performance review in violation of her First Amendment rights.
Rather than address the issue of an adverse job action (which would seem to be the "easier" of the questions), the court ruled that Garcetti foreclosed her case. "An Employee may still be performing his job when he speaks, even if that expression is not demanded of him." The court emphasized, thus, that courts should not look at formal job descriptions but rather to the "practical" considerations of an employee's job. Thus, the court -- in essence -- found that the job description was not dispositive of the issue.
Because the court concluded that the employee raised her concerns in her "professional capacity" as an employee, and not as a private citizen, her speech was not protected by the First Amendment.
No surprise that the court applies the asinine, formalistic dichotomy between acting as an employee or a citizen (but never both), but the advice that follows from Dan, a labor and employment, management-side attorney for prominent law firm, Epstein Becker, is another story:
For employers that are considering revising an employee's job duties or position description, it makes sense to include a reference to reporting safety or other concerns (if that is a legitimate part of the job). Although the employer may believe that this is implicit in particular jobs, it is helpful to have this established at a neutral point in time in writing -- rather than as a company policy.
Now, just to be clear, I am not blaming Dan for what is legitimate, tactical lawyering for his clients, but if First Amendment rights of employees rise or fall on how an employer drafts a job description and whether an employer expressly places in that description reporting obligations, we have clearly lost our way in protecting the civil liberties of our citizen-employees. The fact that such legal advice is even relevant again goes to the absolute absurdity of Garcetti.
Hat Tip: Mike Fischl