Being a government employer can be tough. While private sector employers have great leeway in what they can discipline employees for, like holding political beliefs contrary to their own or even being a Green Bay Packers fan, government employers do not have such liberties.
Government employers cannot discipline an employee for speaking on “a matter of public concern.” This means that a government employee cannot be disciplined for commenting on any type of broad social or policy issue that is not directly related to his or her employee. So, a government employee cannot be disciplined for stating that he or she would like to see the President assassinated. Nor can a DMV employee be disciplined for stating the DMV wastes taxpayer money. Instead, a government employee can only be disciplined for expressing personal grievances that comment on the day-to-day minutiae of the job, and do not address broader matters of public concern.
In a recent case, a court found that a professor who engaged in rather bizarre behavior fell into this second category, and could be fired for his conduct. The professor taught music education, but focused a significant portion of his class on subjects that seemingly had nothing to do with this subject, like Satanism, anarchy, and politics. He also showed violent and explicit music videos in class. When a student complained about this, the professor created a Facebook page that criticized his students for not wanting to discuss broader issues and being incapable of thinking critically.
The professor’s criticisms were not limited to his students. He also created a Tumblr blog that accused the music department leaders of micromanaging him. He stated that he lacked confidence in the way his boss ran his department, as it was “heavy handed and not inclusive of everyone’s input.” He refused to make his students purchase lecture notes or attend live concerts put on by the music department, even though his department required him to do this. He was also accused of failing to provide sufficient feedback to his students. The professor was eventually denied a promotion, and accused the school of violating his First Amendment rights by this denial and by allegedly making him teach a heavier workload.
The court denied the professor’s claim, finding that his activity was not protected by the First Amendment. The court found the professor’s criticisms to be limited to internal matters that concerned his job, and not to broader social or political issues. He did not publicize his views to the world, but mostly discussed them with other colleagues or people associated with his school.
In this incident, the university addressed this employee’s conduct correctly, but First Amendment issues can be tricky. Sound policies that conform to the law are one key to properly addressing employee speech issues. Supervisor training is the other key to ensure that discipline is always appropriate. The labor and employment lawyers at Ancel Glink are experienced in public employee First Amendment issues and are happy to assist in these issues.
