10 minute read
Legal Corner
Government employers’ concerns: free speech, social media and at-will employment
They need to get a fire hose and spray these folks. They’re standing on 18 wheelers and (expletive) ... Don’t take no (expletive), this is our City! ... [Referring to a trio of women of differing races:] It’s like: 2 Ferraris and a dump truck.
— Shelby County, Tenn. sheriff’s deputy Facebook posts; relieved of duty
And they wonder why they’re profiled. #idiots.
— Jonesboro, Ark. city official’s Twitter posts; suspended for two weeks without pay.
By Lindsey Bailey AAC Legal Counsel
Whether employees realize it or not, even when off duty, they may still be representing their employer. With the prevalence of social media use among the public, often involving heated discussions on divisive topics, it is pertinent for employers to notify their employees of this fact before it becomes an issue. Some of you may be asking yourself, “How were some of those people terminated? The First Amendment protects our right to free speech!” Others may be thinking, “Why do I need to have these conversations with employees? Arkansas is an at-will employment state, and I can fire whoever I want for whatever reason.”
Well … not exactly.
One of the most touted yet least understood concepts in U.S. Constitutional law is the First Amendment’s guarantee of a citizen’s “free speech.” In spite of what much of the public believes, the First Amendment does not give a citizen the right to say whatever he or she wants with no possible consequences. To the contrary, the First Amendment gives a citizen the right to use protected speech without fear of certain consequences or censorship by the government. Classes of speech that are generally not protected by the First Amendment include obscenity, defamation, words that incite a “clear and present danger of imminent lawless action” and “fighting words.” Many of the examples cited above could fall into one or more of these categories. In contrast, political speech or conduct is heavily protected.
County-elected officials are in a unique position as employers because they are also arms of the government and are ruled by the First Amendment free speech principals regarding what kind of employee speech and conduct they can restrict. In this age of technology, social media and people making their lives and opinions more public than ever before, it is reasonable that employers might become uneasy about what employees might do or say in a public forum and how it could reflect on the employer. Some easy-tofollow, key guidelines include:
Would someone please put a bullet in the (expletive) head. He has no respect for anyone in uniform and no respect for America. He’s a worthless piece of (expletive).
— Anchorage, Ky. firefighter commenting on an inflammatory article about President Barack Obama; suspended and under federal investigation.
Social Media
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1. Restricting the content of an employee’s speech, or restricting what they can say requires a showing by the employer that the restriction is necessary to serve a compelling state interest and is narrowly tailored to achieve that goal. In cases of speech restriction, courts have been less likely to uphold prior restraint of certain categories of speech, and more likely to uphold the subsequent punishment for unprotected speech that has already taken place. 2. Restricting an employee’s conduct or restricting what they can do is somewhat more lax, requiring an important government interest if the conduct is in a public forum (like social media), or merely reasonably related to a legitimate regulatory purpose if the conduct is in a nonpublic forum (such as the private dinner conversation). 3. Overbroad restrictions on employee speech (“you cannot have a social media account”) and restrictions giving the employee unfettered discretion (the county elected official only restricts speech that is morally reprehensible to her) are prohibited. Similarly, a restriction on employee speech can be void if it is too vague (“Do not post anything on social media that might be offensive to a member of the public.”)
In this particularly volatile election cycle, it is inevitable that some county employees will feel compelled to exercise their right to free political speech, whether in person in a county office or over social media. As an employer, you may not agree with or like everything they have to say — in fact, you may despise and be appalled by it. You may even want to fire the employee. It is important to be aware of a county elected official’s rights as an employer in an at-will employment state, while also being mindful not to violate an employee’s First Amendment rights.
The Arkansas Department of Labor website explains the Arkansas-adopted doctrine of “employment at will” by stating that, absent a contract indicating otherwise, “either the employer or the employee may end the employment relationship at any time for any reason or for no reason at all.” It then lists numerous federal and law exceptions that serve to protect employees from discrimination. An employee cannot be fired solely “on the basis of age, sex, race, religion, national origin or disability,” among others. An employee also cannot be fired solely for exercising their right to protected speech or affiliation, political or otherwise.
In 1976, the U.S. Supreme Court in Elrod v. Burns prohibited “patronage dismissals” of county employees. The Court ruled that it was a violation of the employees’ First and Fourteenth Amendment rights for a newly elected Democrat sheriff to terminate a group of Republican “noncivil-service employees,” including a chief deputy of process serving, a bailiff, a process server, and an office employee based solely upon their lack of affiliation with the Democratic Party, even though this type of dismissal was a common practice in the county where a new sheriff was elected almost every election cycle. The majority ruling stated specifically that it was unconstitutional to discharge or threaten to discharge “a nonpolicymaking, nonconfidential government employee ... from a job that he is satisfactorily performing upon the sole ground of his political beliefs.”
In 1980, the Supreme Court took up a similar issue in Branti v. Finkel, further clarifying the Elrod ruling. Here six of nine assistant public defenders in an office were dismissed because of their Republican Party affiliation. The Branti court ruled, “The ultimate inquiry is not whether the label ‘policymaker’ or ‘confidential’ fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.” The Court explained that while a governor’s speech writer or communications director might require party affiliation to be an effective member of his employer’s team, party affiliation was not an appropriate requirement for a state university football coach.
Following these federal cases, in 1985, the U.S. Eighth Circuit Court of Appeals (which is binding on Arkansas courts) held in Horton v. Taylor that a county judge’s roadgrader employees did not meet the exception of the “policymaking [employee] related to ‘partisan political interests,’” nor did they have “access to confidential information bearing whatsoever on partisan political concerns.” Also considered was the Branti addition of whether “party affiliation is an appropriate requirement for the effective performance of the public office involved.” Answering all of these inquiries in the negative, the court upheld the lower court’s determination that the road-grader employees were wrongly dismissed based solely on party affiliation.
Threat of or actual dismissal based on protected speech While Elrod and Branti involved cases in which the dismissals were based only on political beliefs and associations, the Horton case also addressed the termination of county employees based on arguably protected political speech. There is a separate test for employers’ dismissal decisions when possibly protected speech is involved rather than mere beliefs or associations. The first question to be asked is whether the statements made by the employee were “mat-
ters of public concern.” If the employee is speaking not as a citizen on matters of public concern, but merely as an employee on matters of personal interest or dislike, then generally the employer’s personnel decisions in reaction to the employee’s speech or behavior will not be disturbed by the courts.
However, if the employee’s speech or conduct involved legitimate matters of public concern, then the appropriate test becomes balancing “the degree of ‘public concern’ legitimately held in the particular expression of ideas — as measured by the expression’s content and context — against the degree to which the employee’s conduct is justifiably viewed by the public employer as an actual or threatened disruption of the conduct of government operations for which the employer is responsible.” However, the court cautioned that if there is only a small degree of public concern in the employee’s expressions, the public employer does not have to “tolerate action which he reasonably believe[s] would disrupt the office, undermine his authority, or destroy close working relationships.”
Finally, if the dismissal is found to be for mixed motives, both political speech over matters of public concern as well as expressions of personal opinion on personal matters, then the next test is whether the dismissal “would have been made in any event for reasons unrelated to any exercise of protected First Amendment rights.” If so, then the dismissal could be deemed appropriate. Once an employee establishes that their political affiliation or speech was a factor in their termination, the burden shifts to the employer to show that the employee would have been terminated anyway, notwithstanding the employee’s protected conduct or speech.
Having and sharing a social media policy as well as an employee conduct policy with your employees could protect both employer and employee from mishaps that might arise when expectations are not adequately communicated. It is equally important to have your social media and employee conduct policies vetted and approved by your county attorney as well as your general liability defense attorney.
Ballot
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rently, only special taxes collected can be used to pay off these bonds. The fifth section of the proposal repeals the requirement that municipal and county bonds have to be sold at public sale. Lastly, the amendment allows for counties, cities, towns and school districts to form compacts for economic development projects. Economic development projects means the land, buildings, furnishings, equipment, facilities, infrastructure and improvements that are required or suitable for the development, retention or expansion of manufacturing, job training facilities, and regional or national corporate headquarters. A lot of what this amendment is attempting to achieve is clearly defining what constitutes tax payer dollars being spent on economic development.
The University of Arkansas Division of Agriculture, Research and Extension office has released the 2016 voter guide, “Arkansas Ballot Issues.” I have referenced this report multiple times in this article. The voter guide stated there has been no organized or publicized opposition to issues 1 and 2. Issue 3 was the most controversial of the three; the House of Representatives passed it 70-22, and the Senate passed it 20-5. The opposition to Issue 3 believes taxpayer dollars should not be spent on private companies, and government should not be in the business of picking winners and losers.
Readers may visit http://www.uaex.edu/business-communities/voter-education/ArkansasBallotIssuesVoterGuide2016-Final.pdf to find out more about Arkansas ballot issues. This voter guide breaks down each ballot issue in its entirety and gives an unbiased opinion on what each issue would do if enacted by the voters. It also provides the views of the supporters and the opponents. This is an excellent resource for all voters across the state. There are four other ballot issues to be voted on in November. These are all measures that qualified to be on the ballot through the petition process. Editor’s note: all four of the remaining issues are being challenged in court.
Issue 4 is an amendment to limit attorney contingency fees and non-economic damages in medical lawsuits.
Issue 5 is a proposal to allow casino gambling in Boone, Washington and Miller counties. You are probably already seeing commercials for this proposal. I anticipate this ballot issue to be one of the most talked about amendments.
Issue 6 is the medical marijuana amendment, and Issue 7 is the medical cannabis act.
