Employee Speech Research Articles

Employment Law

Nonprofit Business AdvisorVolume 2016, Issue 319 p. 10-12 Employment Law Employment Law First published: 18 March 2016 https://doi.org/10.1002/nba.30181Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinkedInRedditWechat Abstract Employment Law: Public nature of employee's speech keeps case alive Retaliation: Judge refuses ‘manager rule’ in Title VII case Sexual Harassment: Sexual materials in the workplace result in suit Volume2016, Issue319April 2016Pages 10-12 RelatedInformation

The Special Value of Public Employee Speech

Previous articleNext article No AccessThe Special Value of Public Employee SpeechHeidi KitrosserHeidi Kitrosser Search for more articles by this author PDFPDF PLUSFull Text Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinkedInRedditEmail SectionsMoreDetailsFiguresReferencesCited by The Supreme Court Review Volume 20152015 Article DOIhttps://doi.org/10.1086/685376 Views: 229Total views on this site © 2016 by The University of Chicago. All rights reserved.PDF download Crossref reports no articles citing this article.

Personal Foul, Roughing the Speaker: The Illusory War between the Establishment Clause & College Football

Under the current landscape of First Amendment free speech and Establishment Clause jurisprudence, the boundaries of permissible speech at the university level has not been decided by the Supreme Court. While public employees have the right to speak out on matters of public concern and religious speech cannot be excluded from government property under the premise that it represents viewpoint discrimination, the exact boundaries of employee speech regarding religious matters is uncertain at best. Further, the Court’s Establishment Clause doctrine, although appearing to move toward adoption of the coercion test, is muddled with conflicting tests and ideologies. What happens when these rights so valuable and vital to the Constitution, intersect has not been settled by the Supreme Court. Several recent trends in collegiate football have raised serious issues regarding this uncertainty, as head coaches at major collegiate athletic programs seek to exercise their right to speak on matters of religion to players. Their speech raises Establishment Clause concerns for fear that students will be coerced to participate or acquiesce to the coach’s desires.This article proposes a method for resolving these differences. In Part I, I will analyze the background law governing public employee’s free speech claims, the intersection between the freedom of speech and the Establishment Clause, and whether coercive speech falls outside the realm of constitutional protection. In addition, I will provide background on the Court’s Establishment Clause jurisprudence regarding the Coercion test, as well as the implications of the recent case of Town of Greece v. Galloway. In Part II, I will set out the views of several Circuit Courts of Appeals on the issue. In Part III, I explain why religious speech is a matter of public concern, and why the Coercion Test represents the best tool for analyzing potential Establishment Clause violations at the university level. In Part IV, I will separately analyze the issue of prayer using the same methodology. Finally, in Part V I will set out my test for a violation with regard to employee speech in the university context, namely that the coercion test, where coercion is defined as either mandatory presence at an event, religious service, or some other instance that represents a blatant and clear violation of the Establishment Clause, or the imposition of harmful punishments or consequences for disagreement or non-participation, represents the proper test. I will then apply this test to several real life examples in the world of college football.

The Test of the Protection and Restriction of Public Employee Speech in the United States Constitution

The Test of the Protection and Restriction of Public Employee Speech in the United States Constitution

A Motivação do Homem para o Trabalho: um Estudo sobre o Impacto da Crise Econômica Mundial

DOI: 10.5902/198346595534The general objective of this research is to identify significant differences in the levels of ‘Satisfactionand Motivation’ among employees of the Best Companies to Work For in Brazil, elected by Guia VocêS/A-Exame, between 2007 and 2009. The specific objectives seek to: (1) verify if the result of the category‘Satisfaction and Motivation’ in 2009 differs significantly from 2007 and 2008, (2) assess the variations inthe indices that composes the result of this category in 2009 and relate them to the theory of motivation,and (3) identify elements in the speech of employees that demonstrate the actions taken by companiesbefore the global economic crisis in 2009 to keep them motivated and relate them to the theory of managementin the era of economic turbulence. The theoretical framework addresses three main issues: (1)organizational climate - its relationship to the organizational system and motivation, the importance ofits measurement through organizational climate surveys structured by categories and actions of seniormanagement due to its results. (2) Motivation - a conceptual overview and the recent discussion aboutthe meaning assigned to work as a source of motivation. (3) The management in the era of economicturbulence - the role of leadership dealing with new challenges of management in the chaos, clarity andeffectiveness communication due to maintain team morale in times of crisis. In order to find the answersto the proposed problem, we performed a descriptive analysis with focus on quantitative and qualitativedata. The survey sample was comprised of 66 companies that figured in the Guides for 2007, 2008 and2009. The Statistical analysis was given by applying the Kolmogorov-Smirnov (KS) test, additionally theGeneral Linear Model (GLM) and the selection method of Wilks Lambda. The quantitative results obtainedby applying hypothesis and comparison tests between means showed a drop in the levels of ‘Satisfactionand Motivation’ in 2009 compared to 2007 and 2008. From this result, we applied two methodsof qualitative analysis (exploratory data analysis and discourse analysis), in order to verify the possibleinfluence of global economic crisis on this result. Qualitative results show seven points of attention, fiveof which had higher negative change between 2008 and 2009 and only two showed positive growthbetween 2008 and 2009. In addition to these points of attention, the qualitative analysis according tothe speech of employees identified some actions taken by companies about leadership, communicationand maintenance of morale, corroborating the theory presented. The study’s findings point to the fallinglevels of ‘Satisfaction and Motivation’ in 2009 and the efforts of management focused on overcoming thecrisis. Some practical recommendations are submitted to the HR community, so that in times of economicturbulence they might be applied in order to mitigate potential negative impacts explained by research.

Word Travels Fast: Employees Should Think Before Speaking, While Employers Must Be Prudent in Disciplining Employee Speech and Expression

Word Travels Fast: Employees Should Think Before Speaking, While Employers Must Be Prudent in Disciplining Employee Speech and Expression

Focus: Abuse at the workplace: Deutsche Telekom in the United States

INTERNATIONAL union rights Page 3 Volume 20 Issue 4 2013 FOCUS ❐ RECOGNITION AND BARGAINING SYSTEMS Abuse at the Workplace: Deutsche Telekom in the United States The combative workplace recognition system in the US gives the employer a strong intervening role that can block workers’ efforts to establish a union TONY DALEY is a Research Economist at the Communications Workers of America (CWA). He coordinates the campaign for worker rights at T-Mobile US The Choices under US Labour Law US labour law establishes that a work unit can have only one employee representative. The law requires, however, that a majority of workers must choose their labour union and they must do so independently of influence from the employer . The law offers latitude in determining such a majority: the employer can accept individual statements of support from a majority of the workers, or the employer must accept a representation election supervised by the National Labour Relations Board (‘NLRB’). The company must not campaign for a union. The company, though, may campaign against the union. This gives management an inherent advantage since US unions have no guaranteed access to work premises. Instead, union representatives must meet with workers off-site and outside work hours. Inside the facility, workers may marshal arguments for collective representation during non-work time. In contrast, the employer is free to use work time to argue that employees should reject the union. US companies’ approach to workers’ freedom of association is varied. AT&T, the largest telecom company in the US, accepts union authorisation cards as a measure of support, using a third party (American Arbitration Association) to verify totals. When workers start signing up for representation, the company remains neutral and even trains lower level managers to refrain from comment about the organising effort. The Communications Workers of America (‘CWA’) represents 132,000 workers at AT&T of which 44,000 work for AT&T Mobility, the wireless provider. T-Mobile US (‘TMUS’) represents the other extreme. Controlled by the German telecom giant Deutsche Telekom, TMUS takes the position that it can only recognise a majority of workers demanding a union if an election takes place. It is unabashed in communicating its anti-union message, taking full advantage of the law’s provisions in terms of employer speech. Employees are forced to listen to managers harangue the labour movement and the CWA. Elections are plagued with management’s consistent badgering of employees to vote against the union. When pressed on worker rights, DT claims that it respects the law of countries in which it operates , but numerous complaints from the NLRB suggest otherwise. DT argues that it can only recognise a union representing a majority of workers in the US if there is an election. Managers retain ‘free speech’ rights to communicate actively and repeatedly to workers that the company opposes organising and union recognition. Corporate speech – in contrast to severely restricted employee speech – is the wedge used F or the last twenty-five years, income in the US has shifted to the wealthiest Americans. Workers’ wages have stagnated while productivity (output per hour of work) has increased by 25 percent. Median weekly earnings between 2004 and 2013 were down 1 percent in real terms. This divergent trend between wages and productivity means that working people are not reaping the gains of economic growth in the United States. In real terms, the national minimum wage is worth 23 percent less than in 1968. 46.5 million people live in poverty in the US, bringing the official poverty rate to 15 percent. The Economic Policy Institute found that the annual compensation of top CEOs has risen 835 percent since 1978 while private sector pay has risen 5 percent. The assault on labour unions drives this inequality. The pervasive use of union avoidance consultants has discouraged workers from exercising their rights. The percentage of workers covered by a collective bargaining agreement has shrunk to under 7 percent in the private sector. The labour movement’s political force is incapable of moderating the zeal of the Right. The National Labor Relations Act of 1935 (‘NLRA’) – the foundation of American labour law – states that it is public policy to encourage ‘the exercise by workers of full freedom of...

Using Social Networking To Discuss Work: NLRB Protection for Derogatory Employee Speech and Concerted Activity

Using Social Networking To Discuss Work: NLRB Protection for Derogatory Employee Speech and Concerted Activity

Employee Blogs: Protected Speech Or Grounds For Discharge?

Posting and reading blogs is one of the fastest growing uses of the Web. Blogging gives an ordinary person the ability to have a conversation with a wide audience. Dozens of employee-bloggers have been “dooced” (terminated) for exercising what they consider to be their First Amendment right to free speech. An important legal issue with significant implications for both employers and employees is to what extent are employee blogs a form of protected speech. The First Amendment, employment at will, and laws protecting employee speech are discussed. Suggestions are made for procedures employees should follow to safely blog.

Caution in the Classroom: K-12 Teacher In-Class Speech, The Federal Courts and Garcetti

The federal courts’ approach to regulating K-12 public school teacher speech in the classroom has been split during the past twenty years. Some circuit courts use Pickering v. Board of Education, in which speech is examined to see if it touches on a matter of public concern. Others prefer Hazelwood v. Kuhlmeier, which focuses on whether speech is school-sponsored and whether the school had a legitimate reason for restricting it. In 2007, Garcetti v. Ceballos offered a new perspective on public employee speech. In that case, speech was examined to determine whether it was related to an employee's professional duties. An examination of federal court treatment of in-class teacher speech before and after Garcetti shows the case has further complicated the issue because it is being embraced by some federal courts as an appropriate precedent when dealing with classroom speech.

La influencia de la cultura en el empleo de herramientas comunicativas

This research is a conceptual alternative to the classical interpretation of the relationship between culture and cognition. In order to check the influence of the educative level and experience of immigration on the type of employee speech, use of examples, voices and content of the speech we analysed an act of human communication -debate- among subjects from Ivory Coast and Andalusia. The results show evidence of the appropriateness of the type and content of the speech, the presence of examples and the use of different voices depending on several variables cultural and life experiences.

Will Teachers Shed Their First Amendment Rights at the Schoolhouse Gate? The Eleventh Circuit's Post-Garcetti Jurisprudence

Since the 1960s, educators have enjoyed a significant (if confusing) array of First Amendment privileges. The confusion resulted from tensions between principles of academic freedom (both of the educator and the educational institution) and the public employee speech doctrine. The Supreme Court's 2006 decision in Garcetti v. Ceballos threw approximately forty years of First Amendment protections for educators into grave doubt. While Garcetti explicitly declined to address the unique situation of educators, at least with respect to academic freedom issues, the Eleventh Circuit lost no time in adapting the Garcetti reasoning to educational settings, however inexact the fit. This article begins by examining the various doctrinal threads that previously comprised First Amendment protections for educators, and then analyzes how Garcetti and the Eleventh Circuit's incorporation of Garcetti into its jurisprudence jeopardize important First Amendment rights in the educational setting. The article concludes with a proposal for re-thinking the Eleventh Circuit's First Amendment jurisprudence as it applies to educators.

Law & Psychiatry: Whistle-Blowers and the First Amendment: Protecting Public Employees in Psychiatric Facilities

This column describes a case in which a psychiatrist employed at a state psychiatric hospital wrote a series of memos to the hospital board, state officials, and a newspaper describing poor-quality care at the hospital. When his contract was not renewed soon thereafter, he filed suit against the state and two state officials alleging violation of his First Amendment rights of free speech. At a trial in 2004 a jury found that the director of the state's Division of Alcoholism, Drug Abuse, and Mental Health had retaliated against the psychiatrist by declining to renew his contract, thus violating his First Amendment rights. Implications of the case for staff in public mental health systems are discussed.

<I>Board of County Commissioners v. Umbehr</I> and the Extension of Public Employee Speech Protections

This brief essay discusses the Umbehr decision and its application of the public employee speech doctrine.

Extra-Employment Speech

There are at least three approaches we might imagine for determining the constitutional protection of employee speech that is made on the employee's own time and unrelated to his job, which I dub One option is to treat extra-employment speech - which includes everything from writing op-eds to running a personal website to speaking at a political rally - just like other employee speech. That means first determining whether the speech is on a matter of public as described by the Supreme Court in Connick v. Myers. If the speech is on a matter of concern, the reviewing court proceeds to the balancing test set out in Pickering v. Board of Education, where it weighs the restricted speech's value against its detriment to the employer. If not, the speech is left completely unprotected from employer restriction or discipline. A second option is to exempt extra-employment speech from the step-one Connick inquiry. The speech would simply be shuffled right along to the Pickering balancing test, where its value would be compared with its disruptiveness. Finally, extra-employment speech might be removed from both the step-one Connick analysis and the step-two Pickering analysis, requiring a new analytical rubric tailored to its unique characteristics. The conventional wisdom is that the modern doctrine embraces option number one; there is no recognized exception for extra-employment speech, which is analyzed under the same two-step approach as other employee expressions. If the speaker can show that his speech was on a matter of concern, he might be able to rely on the off-the-job character of the speech as affecting the step-two Pickering balancing test. But the overarching analytical rubric remains unchanged. Recent statements by the Supreme Court, however, suggest a revision to the conventional wisdom. In this essay, I make a case for reading the Court's pronouncements as adopting the second option described above: Connick's threshold concern requirement does not apply to extra-employment speech. The significance of this reading is potentially considerable. As a theoretical matter, such a doctrinal revision would give us a better idea of what the Court is driving at with its employee speech jurisprudence. More practically, the revision would be important for litigants, who would find themselves with an alternative avenue for arguing that extra-employment speech is protected by the First Amendment even if it could not satisfy the Connick concern requirement.

Privacy Rights and the Doctrine of Unconstitutional Conditions in Public Employment

This paper argues that whatever debates continue to stew regarding the true meaning of Lawrence v. Texas, at the very least, Lawrence represents the recognition of an individual's heightened interest in decisional non-interference in private affairs. This is an important constitutional development since a problem under the doctrine of unconstitutional conditions only arises when the government offers a benefit, like government employment, conditioned on the waiver of a preferred constitutional right. Thus, a government employer, post-Lawrence, should be prohibited, under the doctrine of unconstitutional conditions, from firing a government employee who exercises her rights to decisional non-interference in private affairs. However, the current protections for public employee speech rights under the Connick/Pickering analysis do not adequately safeguard these emerging rights to decisional non-interference. The proposed modified Pickering test discards the unnecessary public concern test for these post-Lawrence substantive due process cases and, in the first instance, balances the employee's right to decisional non-interference in private affairs against the government's interest in operating an efficient governmental service for the public. The upshot, and a much neglected aspect of Lawrence, is that over 21 million federal, state, and local United States' employees will enjoy a significant expansion of their rights to be free from arbitrary and capricious government employer interference in their personal and private lives.

Matters of Public Concern: Reconceptualizing Public Employee Free Speech through Definitional Argument

This essay reconceptualizes the Supreme Court's argumentation in the public employee speech case Waters v. Churchill by rereading the case from the perspective of definitional argument. Focusing on the rhetorical role definitions play or do not play in the Court's ruling, I reappraise the employee speech at issue by coordinating the Court's various characterizations of "public" and "private" speech and by deploying them as a working definitional test. I argue that this rereading enlarges and clarifies our understanding of what the Court has called "matters of public concern," and underscores the ways in which definitional ambiguity in this area of law compromises the free speech of employee-citizens.

The New McCarthyism: Sexual Harassment, Free Speech, and Due Process

The issue of sexual harassment has received considerable attention in recent years. As responses to thisJJroblem have evolved, free speech and due process are being increasingly threatened. Since the Supreme Court has given little guidance to managers, their ability to confront this problem is restricted. This article examines the conflict between limiting workplace speech and preventing sexual harassment, arguing that the courts need to clarify the meaning of sexual harassment and that more care needs to be given to the speech and due process rights of employers and employees. The article concludes with a proposal to prevent harassment while protecting speech.

Prepublication review policies at the voice of America: Why censorship of employee speech is antithetical to its mission and to the first amendment

Prepublication review policies at the voice of America: Why censorship of employee speech is antithetical to its mission and to the first amendment

Recklessly False Statements in the Public-Employment Context

During the course of a high profile criminal prosecution, a police officer accuses the District Attorney of fabricating evidence. Days before a bond election, a teacher accuses school board members of misusing public funds. In cases like these, government employers often seek to discipline public employees for making controversial or imprudent statements about matters of public concern. In Pickering v Board of Education, the Supreme Court held that a public employee's true or negligently false statements about matters of public concern are protected by the Constitution unless the government employer's interest in efficiently performing its public duties outweigh the First Amendment interests in the employee's speech.' Many courts have construed this holding to require that the employee's speech be protected unless the employer establish actual harm resulting from the employee's statements.2 The Pickering Court, however, expressly declined to decide whether statements by public employees about matters of public concern are constitutionally protected when those statements are knowingly or recklessly false.3 Since Pickering, the Supreme Court has on several occasions considered the First Amendment interests in the speech of public employees. Although it has refined other aspects of the Pickering analysis,4 the Court has not resolved the question of when, if