Speaking At Your Own Risk…

Wisconsin has been abuzz for the last year with all things policy and politics – from protests to recall elections to fundamental changes in laws, citizens of Wisconsin are reacting. As these issues develop, people young and old are choosing to express their opinions using various outlets – writing letters to newspaper editors, commenting on online articles, attending public rallies, posting on Facebook, tweeting on Twitter, uploading videos to YouTube, exchanging emails, and much more. The question is whether expressing these opinions can put you at risk of losing your job. The answer is yes.

(1) Private Employers

Private employers do not have an obligation to recognize their employee’s free speech rights and because Wisconsin is an “at will” employment state, a private employer may discipline or terminate you with or without a reason, as long as the adverse employment action is not based on your association with a protected class (i.e. disability, race, pregnancy, sexual orientation, etc.). This means that if your employer doesn’t like what you are saying – either on or off duty – on your Facebook page, or Twitter account, or your blog, to a radio call in show or to your co-workers in the break room, you can be terminated and the First Amendment will not protect you.

(2) Public Employers

Unlike private employees, public employees do enjoy First Amendment protection, though the protection is more limited than for private citizens. For public employees, there is a four-part analysis to determine whether speech is protected. It’s important to remember that each case involving public employee speech is fact specific and different factors can lead to different results, depending on the employee’s job duties, the forum used for the speech, whether there is an employment policy governing the speech, and what type of services the public employer provides. That said, the questions below provide a general overview of the analysis required to determine if a public employee’s speech is protected.

(a) Is the public employee acting pursuant to his or her official duties?

Is the speech the type of speech that an employee must do to accomplish his or her job?

If the employee is acting pursuant to his or her official duties, there is no First Amendment protection and the analysis ends.1

If the employee is not acting pursuant to his or her official duties, the elements below will be analyzed.

(b) Is the public employee speaking on a matter of public concern?

Has not been explicitly defined by courts but issues involving political or social matters are most commonly found to be matters of public concern.

(c) Is the public employee’s interest in his or her free speech rights more important than the public employer’s need to deliver government services?

Does the employee’s speech disrupt or make it difficult for the public employer to provide the services it is tasked to provide?

(d) Would the public employer have terminated the employee even if the public employee hadn’t engaged in the speech?

Even if the speech would be protected under the First Amendment, a public employer can demonstrate that the employee would have been fired even absent the protected speech.

Courts, public employees, and public employers are still working through questions about the First Amendment as applied to public employees, especially in light of the increasing use of social networking sites and other internet forums. As with many situations, the case law in this area has not developed nearly as quickly as it needed to. Employers, employees, and practitioners will continue to watch for guidance from courts grappling with these issues.

If you or someone you know has a question about employment law, contact Hawks Quindel, S.C. for a consultation.

1 The author notes that there is a Circuit split on application of this principle, which was established in Garcetti v. Ceballos, 126 S. Ct. 1951 (2006). The Seventh Circuit, however, has applied the Garcetti “official duties” test as articulated above and for that reason, is used in this blog post, which originates in the Seventh Circuit’s jurisdiction. See Mayer v. Monroe Cnty. Community School Corp., 474 F.3d 477 (7th Cir. 2007).

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Summer Murshid