Friday, April 17, 2015

Can an Employer Terminate an Employee Who Speaks Against the Employer’s Budget Plans

We have previously reported on the difficulty in terminating public employees through the grievance arbitration process (See City Des Plaines v. Metropolitan Alliance of Police, 2015 Ill.App.1st 140957 (March 31, 2015)). Public employees, whether or not represented by a Union, also are entitled to certain constitutional protections not afforded in the private sector. When the government is the employer then government action is restrained by the constitution. Public employees may have a property interest in their position, affording them constitutional due process rights. Public employees may have privacy interests in their person, personal effects or workplace desk preventing a government employer from searching a desk or purse, or drug testing the employee without meeting constitutional requirements. 

In Moss v. City Pembroke Pines, 14-11240 Eleventh Circuit (March 31, 2015), an assistant fire chief was terminated due to budget cutbacks. The assistant chief sued alleging that the true reason for his termination was that he spoke out against the City budget plans and certain fire pension matters. After a trial, the Court granted the employer’s motion for summary judgment as a matter of law. The assistant chief failed to show that he spoke out as a private citizen. Therefore, his speech was not protected under the first amendment. The Appellate Court affirmed. 

In order to prevail on a first amendment retaliation claim, the employee must show:
1. He spoke out as a private citizen on a matter of public concern;
2. The  public interest in the speech  must outweigh the employer’s interest in promoting harmony and efficiency in the workplace;
3. The employee’s speech must be a substantial motivating factor in the employee’s termination; and
4. The employer had no other valid reason to terminate the employee.

In Moss, the Court held the assistant chief did not speak out as private citizen, thereby failing the first test. The majority of the assistant chief’s comments occurred while on duty and concerned matters over which he had job responsibility. Factors the Court considers in evaluating whether an employee speaks as a private citizen or public employee include: 

1. The employee’s job duties;
2. Where the speech occurred, whether at work or in public; and
3. Whether the speech concerns the subject matter of the employee’s job. 

In Moss, the assistant chief was tasked with overall management responsibilities for the fire department. Consequently, his job duties concerned the very issues on which he spoke out. Additionally, most of his comments took place while on duty therefore, he failed to show that he engaged in speech in a public forum or as part of broader public discussion of the City budget.

Additionally, the Court held that even if the assistant chief spoke as a private citizen on a matter of public concern, the City had a greater interest in avoiding dissention and discord in the workplace. “The government’s legitimate interest in avoiding disruption does not require proof of actual disruption. Reasonable possibility of adverse harm is all that is required.”

Given the Constitutional protections afforded public employees, public employers need to exercise caution when disciplining or terminating employees.  A quick consultation with an attorney may help a public employer avoid running afoul of an employee’s constitutional protections.