Monday, October 15, 2007

The Future of Public Employee Free Speech: Manipulation of Job Descriptions?

Garcetti_2 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


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Paul - Thanks for your thoughtful post and I appreciate your acknowledgment of what is "legitimate tactical lawyering".

But ultimately, I don't see job descriptions making as large impact on a particular case as you suggest. A job description will likely be only one part of the court's analysis; what the employee is actually doing will be the other part as I highlight. Indeed, where the employee's job description contains safety functions that are not actually being performed, that will, in my view, work against the employer. Unfortunately, some employers still use generic job descriptions (if even that) that cause more problems than they solve.

Ultimately, while I don't think Garcetti is "absurd", I do think it left the door open on questions that the courts are only beginning to grapple with such as its application to private employers and its impact on positions that are safety-oriented. It'll be up to the practitioners to point out the issues that need defining.

Posted by: Dan Schwartz | Oct 15, 2007 8:29:32 AM

One federal court judge recently referred to Garcetti as "revolutionary." That seems like a spot-on description.

I handle law enforcement and firefighter cases. Since Garcetti, we've seen courts rule unprotected by the first amendment speech such as (1) Truthful testimony in court; (2) Cooperation with internal disciplinary investigations; (3) Reporting sexual harassment; (4) Testimony before the governing body in a regular open session; (5) Cooperation with external criminal investigations into allegations of criminality on the part of city council members and a police chief; (6) Questioning the handling of public funds; and (7) Too many more to list.

Aren't these core activities that the First Amendment was designed to protect? It's very hard now to imagine constitutional protection afforded to any whistleblowing activities, particularly if employer's take Dan's advice (and why wouldn't they).

What this does is to force my clients to bring such claims either under state statutory or constitutional schemes, or through the collective bargaining process. For several years now, labor-side labor lawyers have breathed aloud the notion that it is close to malpractice to file a rights claim in federal court given the complexion of the federal judiciary. Garcetti could hardly be more of an exclamation mark for them.

Posted by: Will Aitchison | Oct 16, 2007 8:28:22 AM

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