En Banc Sixth Circuit to Reconsider Olentangy School's Pronoun/Gender Identity Anti-Harassment Policy

 On Friday, the en banc (i.e., entire) Sixth Circuit Court of Appeals vacated the divided panel's decision rejecting a parent group's First Amendment challenge to the school's pronoun/gender identity anti-harassment policy, affirming a prior decision by Columbus Federal Judge Marbley.  The entire court will consider the case, which could have significant First Amendment ramifications, Title IX and maybe even affect the Court's prior decision in Meriwether v. Hartop (which had created an exception for preferred pronoun mandates if the speaker avoided using pronouns altogether).  The case is now again considered a pending appeal, has been opened to supplemental briefing and a new oral argument will be scheduled.  

Sixth Circuit Finds Employee's First Amendment Rights Criticizing Protests Outweighed Employer's Efficiency Interests

Earlier this month, a divided Sixth Circuit Court of Appeals reversed a public library employer’s summary judgment and granted the employee summary judgment on the §1983 First Amendment claim of a security guard who was terminated in 2020 after he briefly posted on his private FB account a highly offensive and hyperbolic meme criticizing the BLM protests.  Noble v. Cincinnati & Hamilton County Public Library No. 23-3853 (6^th Cir. Aug 9, 2024).  In finding that his First Amendment rights outweighed the employer’s efficiency interests in maintaining a harmonious workplace, “there is no proof that any patron objected to [his] meme or even saw it. But, in any event, it was not a prerequisite to be a security guard at the Library that the guard share the politics of book borrowers or librarians.”

According to the Court’s opinion, the plaintiff never had any performance or personality issues at work or with his colleagues in his two years at the library.  Some of his colleagues were also “friends” on Facebook and saw meme he shared saying “All Lives Splatter” and “Nobody Cares About Your Protests” which was deleted less than 24 hours after he posted it and prior to any protests being held in Cincinnati.   Although his FB account was private, it did refer to his employment with the library.   Some of his FB friends were offended and sent screen shots to the library director.  He was confronted by his manager and HR on June 1, after he had already deleted it, and explained that he had thought it was funny.  He was suspended pending investigation, which revealed that his friends were concerned about public perception.  However, there was no evidence that any member of the public saw or were offended by his sharing of the meme (vs. his “friends” sharing the meme with their friends).   In other words, the meme had been shared more by people who said that they were offended than by him.   There was also no evidence that he was trying to offend particular co-worker or that he knew that any of his colleagues had planned to participate in BLM protests.   He was ultimately fired on June 11 for violating the library’s harassment policy and causing his colleagues and the public to lose confidence in him.  He filed suit and the trial court granted the employer summary judgment.

The Court had no difficulty finding that the meme involved a matter of public concern.  The Court had previously held that FB posts approving of the Tamir Rice shooting similarly involved matters of public concern:

[He] provided the following description of the message he meant to convey: “I didn’t care about the protests. And if you’re going to protest, that’s fine, you have the right to do so, but when you start breaking the law or stopping traffic or destroying property, I don't agree it’s a protest anymore. You’re violating the law.”  . . .  Whether one agrees with [his] views or not, there is no question that he spoke to a matter of public concern—namely, whether the alleged violent and destructive tactics of BLM were appropriate means to protest the deaths of George Floyd and others.

That the meme communicated this message in an insensitive manner does not affect this analysis, because “[t]he inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.”  . . . . For example, in Rankin, a public employee responded to an assassination attempt on the life of President Reagan with the remark that “if they go for him again, I hope they get him.”  . . . That outrageous statement, the Supreme Court held, was a matter of public concern.  . . . If advocacy of killing the president can be a matter of public concern, then the meme’s depiction of a vehicle running over protestors does not detract from the conclusion that [the plaintiff] communicated on a matter of public concern as well.

Unlike other courts, however, the Court found that the plaintiff’s First Amendment rights outweighed the employer’s efficiency interest.

In the aftermath of the police shootings of George Floyd and others, there was nationwide debate over whether the BLM protests were an appropriate response when they resulted in alleged violence, destruction of property, and looting of businesses that had no relationship to the shootings. . . . . The way in which [he] expressed his opposition to BLM may not have been mainstream, but the sentiment that he wished to convey—that the methods of the BLM protests were counterproductive—was by no means an isolated segment of public opinion.

 As to context, the Library fired [him] for a post “made on his private Facebook page while he was at home and not working,” id., which “raises more First Amendment red flags,”  . . . There is no evidence that [he] took his politics to work or that his views on the BLM protests or any other political matter ever interfered with how he performed his job. To put this in context, consider that the employee in Rankin expressed her wish for President Reagan’s assassination during the workday.

We determine the scope of the Library’s interests by considering whether [his] speech “(1) impairs discipline by superiors or harmony among co-workers, (2) has a detrimental impact on close working relationships for which confidence and personal loyalty are necessary, (3) impedes the performance of [his] duties or interferes with regular operations of the enterprise, or (4) undermines the [Library’s] mission.”  . . .  “Together, these factors center on the [Library’s] effective functioning as a public agency.”  . . . This interest increases “as the speech becomes more controversial.”  . . . And [his] criticism of BLM was very controversial; indeed, it was directly opposite from the political messages on the Library’s website.

Weighing these competing interests, we hold that [his] interest in his speech outweighs the Library’s claimed efficiency interest because no evidence indicates that [his] speech significantly hindered Library operations. To begin, no member of the public ever complained about [his] post. Nor is it likely that the public would have seen the post: [He] kept the meme up for less than a day, his profile settings limited public viewership, and he had few Facebook friends.

Granted, [his] speech was highly distasteful, but the First Amendment protects abhorrent speech, and it does so even if the speech makes others feel quite uncomfortable. . . . . Similarly, the Supreme Court has held that the First Amendment protects individuals who refuse to salute the flag, or even burn it, and who engage in homophobic protests at military funerals, despite that such actions deeply offend many people.  . . .  That is because the First Amendment does not permit one side of a debate to use the government to cancel the other side. It allows all perspectives, even the very offensive, to be heard.

A public employer need not wait until an actual disruption to discipline an employee.  . . . But its anticipation of disruption must be objectively reasonable. . . . Without evidence that any member of the public beyond a few Facebook friends saw the meme, the Library could not reasonably anticipate any public backlash against the meme that would disrupt its operations. And though the Library appeared to argue that it could anticipate that [he] would run over his colleagues or protestors because [he] had access to a Library vehicle as a security guard, the Library did not seriously raise this argument at oral argument. The Library could not have reasonably anticipated that [his] hyperbolic meme suggested that he would recklessly drive any Library vehicle. In fact, [he] rarely even drove as part of his job and there is no evidence that he was ever unsafe behind the wheel.

The Court distinguished prior decisions finding the employer’s interest to outweigh the employee’s First Amendment rights where the employees’ FB posts had been “racially charged” or involved a racial slur or were by employees who held leadership posts or worked closely with the public. “Contrary to what the dissent suggests, the fact that [he] was a public-facing employee does not alter this analysis. Again, there is no proof that any patron objected to [his] meme or even saw it. But, in any event, it was not a prerequisite to be a security guard at the Library that the guard share the politics of book borrowers or librarians.”

 . . . . That the Library fired [him] for speech expressing a view contrary to the powers-that-be at that institution casts doubt on its motive for firing him and undercuts its workplace harmony interest.

 . . . Here, the only injuries that resulted from the speech were the alleged wounded feelings of certain co-workers who had lost trust in him. . . . given [his] spotless record as a security guard prior to the meme, there is strong indication that he would have again performed his duties appropriately had he been allowed to retain his job, thus restoring that trust. Absent evidence that [he] posed a threat or risk to fellow workers, his hyperbolic speech alone was not enough to fire him. Given the short time [he] kept the meme on his Facebook page, its limited viewership, and the lack of public response, the Library could not have reasonably expected that [his] post would incite disruption. Pickering does not give the Library carte blanche to take away [his] means of livelihood based on his speech. The balance favors [him], not the Library.

The Court not only remanded the case back to the trial court, it directed the trial court to enter summary judgment for the plaintiff security guard. 

Dissenting, Judge Sutton preferred to give the Library broad discretion as an employer against a public-facing employee who shared a meme showing violence against BLM protesters. 

Deciding whether [he] has a greater interest in commenting on protests or whether the library has a greater interest in managing its workplace leaves us with the ineffable task of “judging whether a particular line is longer than a particular rock is heavy.”  . . .  Even if we could strike the right balance between these competing interests, the task would give us the unenviable role of acting like “legislators, not judges.”

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Ohio Court Rejects Free Speech and Retaliation Claim by Private Sector Employee Fired for Facebook Post

Last month, the Court of Appeals for Auglaize County affirmed an employer’s summary judgment on a wrongful discharge in violation of public policy claim where the employee had been terminated shortly after receiving complaints about a racist meme which she had posted on Facebook in June 2020.  Hall v. Kosei St. Marys Corp., 2023-Ohio-2021.    The Court concluded that employees of private employers are not protected by the First Amendment or the Ohio Constitution and, thus, do not enjoy an unlimited right of free speech.  Further, she could not show that her arguably protected conduct (in reporting another employee for inappropriate comments) motivated her termination when other employees also complained about her Facebook post and could not have been retaliating against her.  The Court also found the passage of 25 weeks between the arguably protected conduct and her termination removed any temporal proximity needed to show causation by itself.

According to the Court’s opinion, the plaintiff had been employed for several years when she posted a meme on her Facebook page which, among other things, compared BLM protestors to monkeys.  She denied that she had seen the entire photo before she posted it and argued that it was more political than racial.   Several of her co-workers and subordinates saw it and complained to Human Resources.  She was then fired and brought suit, claiming that she was fired in violation of the right of free speech.  She pointed out that one of the complaining employees was retaliating against her for reporting them twice to Human Resources in the prior few months for making racially charged comments and allegations (which were unfounded) about her and other employees. 

The Court rejected her argument that she was fired in retaliation for reporting one of her subordinates for making racially charged and inappropriate comments.  She could not show causation when other employees had also complained and lacked the same motive to retaliate against her.  The passage of 25 weeks between her arguably protected conduct and termination also meant that she could not rely on temporal proximity to prove causation. 

As for whether she could show her termination violated public policy, she could not identify any court decisions where such a public policy had been applied to a private employer and at-will employee.   On the contrary, the court cited to a Franklin County Court of Appeals decision finding that the right of free speech under the U.S. and Ohio constitutions only apply to government employers. “[I]n the absence of state action, the free speech protections of the Ohio Constitution do not provide a basis for [plaintiff], an at-will employee, to raise a wrongful termination in violation of public policy claim in this case against [the defendant company], a private employer.”

we have not uncovered a case in which the free speech protections in the Ohio Constitution have been found to provide a legal basis for bringing a wrongful termination in violation of public policy claim against a private employer in the absence of state action. We decline the opportunity to become the first court to reach such a conclusion. As such, [the plaintiff] cannot establish the clarity element of her wrongful termination in violation of public policy claim in this case. For this reason, we conclude that summary judgment was an appropriate method to dispose of this claim.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Ohio Supreme Court Upholds First Amendment Rights of Unions to Picket Residences and Business of Elected and Appointed Government Officials

Earlier this month, the Ohio Supreme Court ruled that the First Amendment protects the right of unions to picket the homes and places of private employment of public and elected officials during labor disputes.  Portage Cty. Educators Assn. for Dev. Disabilities-Unit B, OEA/NEA v. State Emp. Relations Bd., Slip Opinion No. 2022-Ohio-3167.  “R.C. 4117.11(B)(7)’s prohibition against inducing or encouraging any individual in connection with a labor-relations dispute to picket the residence or place of private employment of any public official or representative of the public employer violates the First Amendment to the United States Constitution as a content-based restriction of expressive activity.” 

According to the Court’s opinion, after “negotiations over a successor collective-bargaining agreement reached an impasse,” the union “members began picketing on or about October 4, 2017. On seven dates” union members also picketed “outside the residences” of some of the agency’s board members. Once, the union members “picketed outside the private business and place of employment of one of the board members . . . . entirely on public streets or sidewalks. There is no evidence that any labor picketing involved obstructive or disruptive behavior.”  The employer filed unfair labor practice charges with SERB, which agreed that the union had violated Ohio Revised Code 4117.11(B)(7) and ordered the union to cease picketing private residences and businesses.  The union appealed to the common pleas court, which ruled in favor of the employer.  The  Court of Appeals reversed and the Supreme Court affirmed.

Peaceful picketing on a public sidewalk or street enjoys a venerated status as a form of expressive activity that is subject to the protections of the First Amendment to the United States Constitution. R.C. 4117.11(B)(7) makes it “an unfair labor practice for an employee organization, its agents, or representatives, or public employees to * * * [i]nduce or encourage any individual in connection with a labor relations dispute to picket the residence or any place of private employment of any public official or representative of the public employer.” The issue in this case is whether R.C. 4117.11(B)(7) violates the First Amendment.  . . .  we conclude that the statute does violate the First Amendment . . .

As the Court explained, peaceful picketing on public sidewalks enjoys considerable First Amendment protection as public forums.  Nonetheless, the government can regulate such speech – i.e., time and volume -- if the regulations are content neutral.

“[E]ven in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions ‘are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.’ ” . . . .

On the other hand, a regulation that targets speech based on its content is subject to the most exacting scrutiny. . . . . If a statute regulates speech based on its content, it must be narrowly tailored to serve a compelling government interest and it must be the least restrictive means readily available to serve that interest. . . . .

Whether a regulation is content based or content neutral thus dictates the degree of scrutiny to which the regulation will be subjected . . . .

The Court rejected the employer’s argument because the restriction cannot “be based upon either the content or subject matter of speech. . . . . “Governmental action that regulates speech on the basis of its subject matter, however, “ ‘ “slip[s] from the neutrality of time, place, and circumstance into a concern about content.” ’ ””

According to SERB and the board, R.C. 4117.11(B)(7) is content neutral because it does not prohibit speech or prevent anyone from communicating any particular message. They further contend that the statute does not create a speech-free buffer zone around public officials’ residences or places of private employment, because all forms of communication other than targeted picketing are permissible. In their view, R.C. 4117.11(B)(7) is a permissible time, place, and manner restriction that is operative during a narrow period of time (picketing in connection with a labor-relations dispute), at a particular place (public officials’ residences and places of private employment), for a particular manner of expression (“targeted picketing”).

Justice Donnelly’s opinion observed that ““[g]overnmental action that regulates speech on the basis of its subject matter, however, “ ‘ “slip[s] from the neutrality of time, place, and circumstance into a concern about content.” ’ ”   While the Supreme Court has upheld restrictions on “all” picketing “before or about” a residence, that ordinance was not limited to certain types of picketing based on the subject matter of the picketing, and, thus, was content neutral. 

R.C. 4117.11(B)(7) additionally regulates expressive activity based on the identity of the messenger. More specifically, it forbids “an employee organization, its agents, or representatives, or public employees” from inducing or encouraging anyone to picket a public official’s residence or place of private employment in connection with a labor-relations dispute.

Because the statute was not content neutral, it is subject to strict scrutiny under the First Amendment and must serve a compelling government interest. The statute’s goal of “protecting the privacy rights of public officials, thereby encouraging citizens to run for or serve in public office and preserving labor peace in Ohio” while laudable, was found to not be compelling enough to save the statute.  As the Justice Donnelly observed, “preserving residential peace and privacy is a significant but not a compelling government interest.”

Moreover, R.C. 4117.11(B)(7) is not narrowly tailored to the point that no less-restrictive means was available to serve the stated interests. Local ordinances and state criminal codes exist to preserve law and order in the event of disruptive conduct that disturbs residential privacy and are justified without reference to the content of the expression. Nor has there been any showing that banning residential and private-employer labor picketing is the only way to encourage citizens to serve as officials of public employers or to preserve the peace during labor disputes in Ohio. The medicine thus prescribed by R.C. 4117.11(B)(7) is not narrowly tailored to the proclaimed illness and indeed far exceeds the interests that it purports to serve

Justice Donnelly also mysteriously rejected the argument that the statute lawfully prohibited secondary picketing against a private sector employer which is not involved in the labor dispute.

picketing at the private employer of a board member or other public official simply does not fit within the secondary-picketing paradigm. Here, the private employer is not a neutral party that has been drawn into the labor-relations dispute only because it does business with the primary employer. Indeed, in this case there is no indication that the private employer that was picketed by the association members had any business relations whatsoever with the board outside of the fact that one of the board members is both the owner and employee of the private employer. There is no indication that the private employer was threatened, coerced, or restrained from engaging in business with the board. Nor is there any evidence that that was the association’s objective in picketing the private employer. Assuming further that the private employer engaged in commerce or an industry affecting commerce, any expressive activity that caused incidental injury to the private employer’s business would not be prohibited by Section 8(b)(4)(ii)(B) and thus would remain protected by the First Amendment.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Rejects First Amendment Retaliation Claim Based On Employee's Firing for Single Use of Racial Slur on Facebook

 Earlier this month, the Sixth Circuit Court of Appeals reversed a trial verdict of $25K which found that a Trump-supporting employee was unlawfully retaliated against in violation of the First Amendment when she had been fired for using racist slang a single time on a Facebook post on election night 2016 even though she had deleted the entire post the next day.   Bennett v. Metro. Gov’t of Nashville, No. 19-5818 (Oct. 6, 2020).  The Court found that the plaintiff’s use of the racist term in responding to the exact same language posted by a stranger was not constitutionally protected and justified her termination.  While her comment did reflect on a matter of public concern, it was not entitled to the highest level of protection as other comments might have been and was outweighed by the disruption created by her comment within her workplace and in the public’s trust of her department.  It was particularly problematic that her Facebook posts were public, that she identified her employer and department, that she failed to disclaim that her personal opinions were her own and not that of her employer, that she had direct contact with the public in her job, that she failed to consistently express remorse or accountability, and that many of her co-workers were deeply offended and upset by her use of the word.  The Court also rejected the plaintiff’s defense asserting that the City had caved to a single heckler’s veto.  While the decision was unanimous and there was a majority court opinion, each judge wrote a separate opinion explaining the outcome.

According to the Court’s opinion, the plaintiff employee stayed up until 3 a.m. on election night and posted an image of the electoral map when Trump had been declared the winner.  A stranger quickly posted a comment on her public page indicating that Trump had been elected by “rednecks” while “niggaz and latinos states vot[ed] for hillary.”  She responded using his same language, ““Thank god we have more America loving rednecks.  . . . Even niggaz and latinos voted for trump too!”  Several friends notified her the next morning that they were offended by her language and she deleted the entire post that afternoon.   In the meantime, the City’s HR Department, the union and the Mayor’s office received a few complaints about her Facebook comments.  One person  (allegedly a disgruntled former employee) who had viewed her post had then made screen shots of it and may have been sharing it on his Facebook page while accusing the City of being racist.   The City became especially concerned because the plaintiff had identified herself as both an employee of the City and its police department.   However, by the time they telephoned her to request that she remove the post, she had already done so.

When she met with the City before her shift the following morning, she initially showed no remorse or understanding of how inappropriate her comment had been.  She felt that she had simply made a sarcastic response to the initial comment and that objectors were not really all that offended.  When she realized that this was becoming a disciplinary issue, she offered to apologize to the offended employees, but objected to apologizing to the entire staff at roll call.  Accordingly, she was sent home on administrative leave pending further investigation.  The union reported increasing tension within the department where the plaintiff worked as a result of her Facebook comment.  The City also decided that diversity training in that department would be appropriate and to have a counsellor come in and speak with employees who were offended.

Following the investigation, the City

determined that [the plaintiff’s] conduct violated three policies of the Metropolitan Government Civil Service Commission: (1) her behavior “reflect[ed] discredit upon [her]self, the department, and/or the Metropolitan Government,” (2) her conduct was “unbecoming of an employee of the Metropolitan Government,” and (3) her Facebook profile disclosed that she was a Metro employee but failed to include a disclaimer that her “expressed views are [hers] alone and do not reflect the views of the Metropolitan Government.”

A letter was sent to the plaintiff explaining

that “[t]o advance the mission [of ECC], it is vitally important that all department employees conduct themselves in a manner free of bias, demonstrate unquestionable integrity, reliability and honesty,” and that “[t]he success of [the] agency can be measured by the perception and confidence the public has in the employees representing the agency.”

The City felt that

the charges were appropriate, first, because she felt that inclusion of a particularly offensive racial slur in a public social-media post was objectionable because it did not reflect Metro policy or the beliefs of people who worked there. Further, she thought such racially charged language would bring discredit to the office and testified that “the public that we serve is very diverse, and it’s my expectation that when someone calls[,] regardless of who they are or where they’re from, that they’re going to receive the appropriate service.” Donegan also concluded that Bennett’s behavior warranted discipline because of the disruption it caused: employees were upset at work, counselors needed to be involved, and stress levels increased for the agency as a whole.

At some point, the plaintiff took FMLA leave and was notified of her pre-disciplinary hearing upon her return and was placed back on administrative leave pending the hearing.  In the meantime, she had written a letter of apology expressing her embarrassment and humility, but she did not express any of those sentiments at the hearing, where she instead defended and explained her conduct. 

[S]he did not exhibit concern for her colleagues’ feelings, called them hypocrites, and indicated that she would not apologize because someone else took something the wrong way—indeed, she believed her colleagues should instead apologize to her.

Concerned with the lack of remorse, accountability or acknowledgement of poor judgment, the decision was made to terminate her employment in order to avoid a repeat of the incident and promote healing within her department.

The plaintiff sued under §1983 and the First Amendment retaliation claim was tried to a jury, which indicated in the jury interrogatories that it found that her Facebook post “was not reasonably likely to impair discipline by superiors at ECC, to interfere with the orderly operation of ECC, or to impede performance of” her duties.  However, the jury also found that her Facebook post was “reasonably likely to have a detrimental impact on close working relationships [within her department] and undermine the agency’s mission, that [the City] terminated Plaintiff ‘[f]or using the term ‘niggaz’ when expressing her views regarding the outcome of a national election on Facebook,’ and that doing so violated the three charges outlined in Bennett’s termination letter.”  Upon receiving these jury interrogatory responses, the trial court ruled that the balancing factors weighed in the plaintiff’s favor and the jury awarded her $25K in damages.

In reversing, the Court of Appeals concluded that the trial court erred in balancing the factors in determining whether the plaintiff’s speech was constitutionally protected.

To establish a claim for First Amendment retaliation, a public employee must show that: (1) he engaged in constitutionally protected speech or conduct; (2) an adverse action was taken against him that would deter a person of ordinary firmness from continuing to engage in that conduct; [and] (3) there is a causal connection between elements one and two—that is, the adverse action was motivated at least in part by his protected conduct.

In order to find that a government employee’s speech is constitutionally protected, a court must first determine whether the employee was speaking as a private citizen or public employee in the course of employment (which was not an issue in this case) and then,

determine whether the statement in question constitutes speech on a matter of public concern.   . . .  Then, if it does, we apply the Pickering balancing test to determine whether the Plaintiff’s “interest in commenting upon matters of public concern . . . outweigh[s] the interest of [Metro], as an employer, in promoting the efficiency of the public services it performs through its employees.”

The Court began its analysis by determining the degree of protection to give the plaintiff’s comments based on “the level of importance the speech has in the community” and its context.  The City conceded that the plaintiff’s comments were political in nature, but argued that her comments were not “purely political” and thus, not entitled to a heightened level of constitutional protection.  While the plaintiff asserted that her comments had been purely political, the Court rejected the plaintiff’s argument that she had been terminated in response for supporting Trump.  She had admittedly posted prior comments supporting Trump and suffered no adverse employment action.    Further, the jury had been given multiple choice options for answering the jury interrogatories and had not selected the option that she was terminated for expressing her opinion about the results of the election.  It also rejected the options about workplace disruptions or lack of accountability.   Instead, it selected the only option which quoted the language that she used on Facebook.

The Court reasoned that the First Amendment does not merely focus on the speaker’s interest, “but also with the public’s interest in receiving information.”  Her comments on a matter of public interest on which she had no special insight was not entitled to the same level of protection of, for instance, discussing the lawful operation of the city government.  Clearly, the public would be more interested in the latter than the former.

It is true that the speech in question was couched in terms of political debate, made in response to and repeating back the words of another person, and used a more casual version of an offensive slur.  Still, Bennett’s speech does not garner the high level of protection that the district court assigned to it, and the balancing test requires less of a showing of disruption and other factors than the district court would require.  . . . In any event, the evidence of disruption caused by the language in Bennett’s Facebook post was substantial.

We apply the Pickering test “‘to determine [whether] the employee’s free speech interests outweigh the efficiency interests of the government as employer.’”  . . . . The test considers “the manner, time, and place of the employee’s expression.” . . . . The “pertinent considerations” for the balancing test are “whether the statement [(a)] impairs discipline by superiors or harmony among co-workers, [(b)] has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, [(c)] impedes the performance of the speaker’s duties or interferes with the regular operation of the enterprise,” id., or (d) undermines the mission of the employer.  . . . The consideration of the employee’s performance, impaired discipline by superiors, harmony among co-workers, and undermining of the office’s mission is “focuse[d] on the effective functioning of the public employer’s enterprise.”  . . .

Consideration of the first factor of the Pickering test, whether the speech impaired discipline by superiors or harmony among co-workers, weighs heavily in favor of Metro. The record makes clear that the harmony of the office was disrupted, and the district court erred in discounting the importance of harmonious relationships at ECC. Employees testified that Bennett’s post prompted a “nonstop conversation” in the office that lasted for days, and for as much as three weeks to a month after Bennett’s comment, there was a need for a counselor to address the office.

While nothing about the plaintiff’s comment impaired discipline among management, “it is possible that any inaction on [management’s] part in the face of Bennett’s derogatory speech could have been seen as an endorsement of the speech and impaired future discipline of similar derogatory statements.”

The Court also found that the second Pickering factor weighed heavily in favor of the City because the jury had found that the speech had a detrimental impact on the close working relationships for which personal loyalty and confidence are necessary.  Employees had expressed concern about whether they could work again harmoniously with the plaintiff in an already stressful environment.

“The third factor, whether Bennett’s speech “impede[d] the performance of the speaker’s duties or interfere[d] with the regular operation of the enterprise,” is a close call.”  The jury found that there was no evidence that the plaintiff’s ability to perform her duties would be impacted, but the Court noted that it was also possible that her damaged relationships with her colleagues could adversely affect her work and job performance.

“Finally, Bennett’s comment detracted from the mission of ECC, weighing again in favor of” the City. “When someone who is paid a salary so that she will contribute to an agency’s effective operation begins to do or say things that detract from the agency’s effective operation, the government employer must have some power to restrain her.”  The jury concluded that her comments had undermined her department’s mission, but the trial court had discounted this finding in error.

Had Bennett’s profile been private, or had it not indicated that she worked for Metro, Metro’s argument for terminating Bennett would not be as strong. But the relevant Civil Service Rules support the idea that public perception is central to ECC’s mission. Bennett’s public comments discredited ECC because they displayed racial bias without a disclaimer that the views were hers alone. This court and several others “have recognized the interest of a governmental entity in preserving the appearance of impartiality.”

In rejecting the trial court’s weighting of this factor, the Court stated that “we consider the role and responsibilities of the employee and, when the role is public-facing, whether the danger to successful functioning of the office may increase.”

In Rankin, the employee was not in a public contact role, and thus, concerns about public perception were too attenuated to limit the free speech rights of the employee.  . . .. Here, however, Bennett was in a public-facing role and used the slur in a public forum from a profile that implicated not only Metro Government but also the Metro Police Department. This situation is exactly the type that Rankin warned could warrant a higher level of caution for public employees’ choice of words. Id. at 390 (stating that if the employee is in a “confidential, policymaking, or public contact role,” the danger to the agency’s successful functioning may be greater).

Second, the district court determined that because the record contained evidence of only one member of the public expressing concern, the fear of the post “going viral” was not a sufficiently substantial justification. But, although we have not addressed the issue directly, other circuits have held that a reasonable prediction that the public perception will impact the government’s operations is sufficient. . . . Grutzmacher acknowledges that speech on social media “amplifies the distribution of the speaker’s message.”  . . . . Although this situation, in some respects, “favors the employee’s free speech interests,” it also “increases the potential, in some cases exponentially, for departmental disruption, thereby favoring the employer’s interest in efficiency.”

Third, the district court “view[ed] it as highly speculative that even if an African American were familiar with Plaintiff’s Facebook comment and was offended by it, such African American would be deterred from calling in an emergency.” The concern, however, was not that African Americans will no longer call for emergency service, but rather—as Metro explains— that “damaged public perception can lead to many ills” for an agency that serves the public directly. The Second Circuit has effectively captured the importance of public trust in such relationships:

The effectiveness of a city’s police department depends importantly on the respect and trust of the community and on the perception in the community that it enforces the law fairly, even-handedly, and without bias. If the police department treats a segment of the population . . . with contempt, so that the particular minority comes to regard the police as oppressor rather than protector, respect for law enforcement is eroded and the ability of the police to do its work in that community is impaired. Members of the minority will be less likely to report crimes, to offer testimony as witnesses, and to rely on the police for their protection. When the police make arrests in that community, its members are likely to assume that the arrests are a product of bias, rather than well-founded, protective law enforcement. And the department’s ability to recruit and train personnel from that community will be damaged. . . . .

The district court’s reference to Bennett’s use of “niggaz” as “the mere use of a single word” demonstrates its failure to acknowledge the centuries of history that make the use of the term more than just “a single word.” The use of the term “evok[es] a history of racial violence, brutality, and subordination.” . . . . It “may appear innocent or only mildly offensive to one who is not a member of the targeted group, but be intolerably abusive or threatening when understood from the perspective of a [person] who is a member of the targeted group.” Id. “The use of this word, even in jest, could be evidence of racial apathy.”

The Court also rejected the plaintiff’s argument about a “heckler’s veto” by giving a hostile mob control over determining what political speech is protected when, up to the time that she had been terminated, only one member of the public had complained about her Facebook post.   

A heckler’s veto involves burdening or punishing speech “simply because it might offend a hostile mob.”  . . . We have not addressed a heckler’s veto in this context, but the Ninth Circuit has held that those concerns are not applicable to the “wholly separate area of employee activities that affect the public’s view of a governmental agency in a negative fashion, and thereby, affect the agency’s mission.”  . . . The Second Circuit has taken a similar view, finding that “members of the African American . . . communities whose reaction . . . the defendants legitimately took into account . . . cannot properly be characterized as ‘outsiders seeking to heckle [the plaintiffs] into silence.’”  . . . Because effective emergency service “presupposes respect for the members of those communities,” such agencies are permitted to account for the possible reaction of the public when disciplining their employees. Id. The public—as the consumers of ECC’s services—and Bennett’s colleagues with whom she must work collaboratively can hardly be said to be “a hostile mob.”

Finally, the Court rejected the plaintiff’s argument that the employer’s workplace investigation was superficial because she had the opportunity to present additional evidence and witnesses at her pre-disciplinary hearing.  “The question in this case is not whether members of the judiciary would have made the decision to terminate Bennett for using a racial slur in this instance. The question is whether Bennett’s language was sufficiently protected for the court to interfere in our proclivity for ‘affording government employers sufficient discretion to manage their operations.’”

Because Bennett’s speech does not occupy “the highest rung” of public concern, less of a showing of disruption is required.  Several factors weigh heavily in favor of Metro. Although there are factors weighing in favor of Bennett, sufficient disruption was shown to tip the Pickering balance towards Metro. Based on the above analysis and in light of the discretion we must grant leadership at Metro, its interest in maintaining an effective workplace with employee harmony that serves the public efficiently outweighs Bennett’s interest in incidentally using racially offensive language in a Facebook comment.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit: Employee Facebook Posts About Police Shooting May Be Protected by First Amendment as a Matter of Public Concern

Two weeks ago, a unanimous Sixth Circuit reversed a summary judgment for the City of Cleveland involving the termination of an EMT officer for offensive comments about Tamir Rice posted on his private Facebook page.  Marquardt v. Carlton, No. 19-4223 (6^th Cir. 8-19-20).  The plaintiff denied posting the comments and asserted that he deleted them within hours as soon as he discovered them.  However, his co-workers/friends had reported the comments and he had been promptly fired.  The trial court had found that the comments were not protected by the First Amendment because they related to a private matter rather than a matter of public concern.  However, the Sixth Circuit found that the comments could be protected as discussion of a public concern, although it remanded so that the trial court could determine whether the statements were protected by the First Amendment and whether the employer’s efficiency interest outweighed the employee’s interest.

According to the Court’s opinion, the plaintiff had been an EMT officer.  He claimed that while a friend was visiting that friend posted on the plaintiff’s Facebook account during non-work hours while plaintiff slept.  The Facebook account did not identify him as a City employee and was visible only to his friends.  The plaintiff claimed that he discovered the post a few hours later and immediately deleted it.  In the meantime, his cousin had responded and he had apparently replied.   Some co-workers apparently reported it to the City and, following a hearing, he was fired for his posts violating the City’s social media policies and not relating to a matter of public concern.  He filed suit that this violated his First Amendment rights.   The trial court found that the posts related to only private interests and not public concern.

The comments at issue related to the shooting of Tamir Rice fourteen months earlier.    Rice’s death provoked a national debate over the use of lethal force by the police.   The event was back in the headlines because a few days prior to the posts, a grand jury had declined to indict the police officer and it had been revealed that the City had mistakenly billed Rice’s family for the ambulance to the hospital.   The post essentially contended that Rice deserved to get shot for waiving around his toy gun and scaring people in the park and that he was glad he was dead.   It referred to Rice as a “ghetto rat” and regretted that the plaintiff did not get to shoot him that day.

To assess whether a public employer impermissibly retaliated against an employee for his speech, we ask three questions: one, whether the employee engaged in protected speech; two, whether the action taken against the employee would discourage an individual of “ordinary firmness” from engaging in the activity that led to his discipline; and three, whether the employee’s protected speech was “a motivating factor” behind the adverse action taken against the employee.  . . . The first in this series raises further questions of its own. For in resolving whether the employee engaged in protected speech, we employ a separate two-part test. We ask first whether the speech was on a “matter of public concern,” and if it was, we balance the interests of the employer and employee, asking whether the “employee’s free speech interests outweigh the efficiency interests of the government as an employer.”

In this case, the trial court found that the posts were not protected speech because the comments did not relate to a matter of public concern.  The Sixth Circuit reversed and remanded the case back to the trial court to resolve the remaining questions about the employer’s efficiency interest and, if necessary, the ultimate retaliation issue.

Speech involves a matter of public concern when it can be “fairly considered as relating to any matter of political, social, or other concern to the community.”  . . . To resolve the public/private distinction, we look to the “content, form, and context of a given statement, as revealed by the whole record.”  . . . .For whether speech is shocking or inappropriate is irrelevant to whether it concerns a public matter.

The gist of the posts was that the police shooting was justified. “Given the widespread local and national scrutiny of the Rice shooting, these aspects of the posts directly relate to a “subject of general interest and of value and concern to the public.”  The death of Rice “was no private matter.”  The Court found the comments to be analogous to similarly offensive comments following the assassination attempt on President Reagan, expressing the hope that the next attempt was successful, and those of the Westboro Baptist Church members at military funerals.  While the trial court had focused on the comments' alleged pleasure at the death of a twelve-year old boy to concern only private interest,

these disturbing first-person sentiments do not, as a matter of law, alter the broader subject of the speech or transform it into a “personal grievance.” The First Amendment is not so fragile that its guarantees rise or fall with the pronouns a speaker selects. And expressions of opinion, even distasteful ones, do not become matters of personal interest simply because they are phrased in the first person or reflect a personal desire.

There was nothing in the posts reflecting a personal or professional knowledge or dispute with Rice, which might have turned it from speech on a matter of public concern to a “private beef.”

[E]ven if the more extreme excerpts from the posts could somehow be construed as involving matters of personal interest, the “public concern/private interest analysis does not require that a communication be utterly bereft of private observations or even expressions of private interest.” . . . . Rather, the relevant question is whether the communication “touches ‘upon matters only of personal interest.’”

The posts did not lose their protected nature by virtue of the fact that they were visible only to the plaintiff’s “friends.” “[S]peech need not be communicated to the general public to be on a matter of public concern. . . . Whether one’s public expression comes from the ink of a quill pen, the stroke of a keyboard, or the tapping of an iPhone, that expression is entitled to First Amendment protection under the same strictures.”

Finally, the context of the posts supported a finding of public concern.

The known context gives no indication that the speech concerned primarily a matter of Marquardt’s personal interest. Whether the posts were spontaneous expressions or long-developed ideas, their substance still reflects matters of public concern because they relate to a “matter of political, social, or other concern to the community.” . . . .That fairly describes the circumstances surrounding the Rice shooting, which generated intense public debate and quickly became a matter of public discussion. As the posts touch on these same issues, they too address a matter of public concern.

At the end of the day, the trial court on remand will need to evaluate whether the employer’s efficiency interest outweighed the plaintiff’s First Amendment rights because “the government, when acting as an employer, may regulate employee speech to a greater extent than it can that of private citizens, including to discipline employees for speech the employer reasonably predicts will be disruptive.”

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Supreme Court Finds Violation of Free Exercise Clause Based on Direct Evidence and Disparate Treatment, but Does Not Define the Limits

As widely covered in the media, the Supreme Court decided with a healthy 7-2 majority that a baker’s sincerely held religious views were improperly censored by a local civil rights commission in violation of the First Amendment’s Free Exercise Clause when the commission concluded that the baker had unlawfully discriminated on the basis of sexual orientation in refusing to create and sell wedding cakes to same-sex couples on the grounds that he did not want to endorse behavior that violated his conscience and that gay marriage was then illegal in Colorado.  Masterpiece Cakeshop Ltd v. Colorado Civil Rights Commission, No. 16-111 (6-3-18).  The Court did not address whether the baker was entitled to live his life and conduct his sole proprietor business according to his conscience, but found that he had been discriminated against by the government agency which was so blinded by its pursuit of justice for the same-sex couple that it forgot that the baker has civil rights, too.    The Court was sympathetic that his refusal took place before same sex marriage was even legal in Colorado and before the Court itself upheld the right of same sex couples to marry.  It was also influenced by evidence that he was willing to sell other baked goods, just not wedding cakes.   The more problematic issue was that the government absolved other bakers of religious discrimination when they refused to create and bake cakes with homophobic or anti-gay marriage themes (with religious quotes presumably about marriage) and that one of the government officials disparaged and equated the baker’s sincere convictions and conscience with slavery and the holocaust.  Above all things, a government must remain neutral in matters of religion, view point and conscience, and that was entirely missing in this case as government officials wanted to publicize their distaste for the baker’s convictions: “[T]he delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach.”

According to the Court’s opinion several of the commissioners were openly hostile to religion and religious dissenters (notwithstanding that several of the initial 13 colonies were initially settled by and because of religious dissent):

At several points during its meeting, commissioners endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, implying that religious beliefs and persons are less than fully welcome in Colorado’s business community. One commissioner suggested that Phillips can believe “what he wants to believe,” but cannot act on his religious beliefs “if he decides to do business in the state.” Tr. 23. A few moments later, the commissioner restated the same position: “[I]f a businessman wants to do business in the state and he’s got an issue with the— the law’s impacting his personal belief system, he needs to look at being able to compromise.”

                Another of the commissioners went even further:

Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.”

The Court observed that the tension between the first amendment and civil rights statutes has been and will remain a difficult issue to resolve, not just for bakers, but for other artists and sole proprietors. It recognized that exceptions will have to be made, but also made clear that those exceptions cannot be too broad without violating the rights of gay citizens:

When it comes to weddings, it can be assumed that a member of the clergy who objects to gay marriage on moral and religious grounds could not be compelled to perform the ceremony without denial of his or her right to the free exercise of religion.  This refusal would be well understood in our constitutional order as an exercise of religion, an exercise that gay persons could recognize and accept without serious diminishment to their own dignity and worth. Yet if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.

There were a number of concurring opinions. The justices did not agree about the relevance of the other bakers who refused to create and sell cakes which they found personally offensive according to their own conscience.  Some saw their different treatment by the civil rights commission as discriminatory, while others did not.  Justice Kagan submitted that making a special cake that disparages gay marriage is so unique that it cannot be compared to a “regular” wedding cake that the baker refused to sell.  She distinguished it from Justice Gorsuch’s view that the “regular” wedding cake was a special cake to celebrate a same-sex marriage.  She joined the majority opinion not because she felt that the other bakers should not have been treated differently, but because of the reasoning of the state agency reflected improper hostility towards religion.  Justice Kennedy’s majority opinion described it as follows:

Another indication of hostility is the difference in treatment between Phillips’ case and the cases of other bakers who objected to a requested cake on the basis of conscience and prevailed before the Commission.

The Commission had found the cake texts to be derogatory and hateful, giving those bakers the right to legally refuse to create and bake those cakes.

The treatment of the conscience-based objections at issue in these three cases contrasts with the Commission’s treatment of Phillips’ objection.  The Commission ruled against Phillips in part on the theory that any message the requested wedding cake would carry would be attributed to the customer, not to the baker.  Yet the Division did not address this point in any of the other cases with respect to the cakes depicting anti-gay marriage symbolism.  Additionally, the Division found no violation of CADA in the other cases in part because each bakery was willing to sell other products, including those depicting Christian themes, to the prospective customers.  But the Commission dismissed Phillips’ willingness to sell “birthday cakes, shower cakes, [and] cookies and brownies,” App. 152, to gay and lesbian customers as irrelevant. The treatment of the other cases and Phillips’ case could reasonably be interpreted as being inconsistent as to the question of whether speech is involved, quite apart from whether the cases should ultimately be distinguished.  In short, the Commission’s consideration of Phillips’ religious objection did not accord with its treatment of these other objections.

                 . . . .

 . . .A principled rationale for the difference in treatment of these two instances cannot be based on the government’s own assessment of offensiveness.  Just as “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion,” West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642 (1943), it is not, as the Court has repeatedly held, the role of the State or its officials to prescribe what shall be offensive.

                 . . . .

                The Constitution “commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures  . . . . “

                 . . . It hardly requires restating that government has no role in deciding or even suggesting whether the religious ground for Phillips’ conscience based objection is legitimate or illegitimate.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Supreme Court’s Holds Employer’s Motive Is Focus in First Amendment Retaliation Case, Not Employee’s Conduct

Today, a divided Supreme Court reversed summary judgment for a municipal employer in a First Amendment/§1983 case where the plaintiff cop had been demoted after he was observed socializing with the campaign staff of the incumbent mayor’s political opponent. Heffernan v. City of Patterson, NJ, No. 14-1280 (4-26-16).  The demotion was based on the incorrect assumption that the plaintiff supported the mayor’s political opponent (arguably protected conduct) when, in fact, he had simply been running an errand for his invalid mother (unprotected conduct).  Nonetheless, the Court found it was the employer’s motive for the demotion and not the plaintiff’s actual conduct that mattered for purposes of determining whether the First Amendment had been violated. “The upshot is that a dis­charge or demotion based upon an employer’s belief that the employee has engaged in protected activity can cause the same kind, and degree, of constitutional harm whether that belief does or does not rest upon a factual mistake.”

According to the Court’s opinion, the plaintiff was a police detective and a personal friend of the political opponent of the incumbent mayor (who had appointed the police chief and the plaintiff’s supervisor).  He was observed by fellow officers holding the opponent’s election sign and chatting with his election staff.  He was demoted to beat patrol the next day because of his “overt involvement” in the opponent’s campaign.  He denied that he had been supporting his friend’s campaign and explained that he had simply been picking up an election sign at the request of his invalid mother.  Because he had not actually been engaged in arguably protected First Amendment activities when he ran an errand for his mother, the trial court granted judgment for the employer on the grounds that its mistaken assumption about his activities could not form the basis of a claim under the First Amendment or §1983 and he had not been denied any First Amendment or other constitutional right.  The Third Circuit affirmed.    The Supreme Court reversed.  

“With a few exceptions, the Constitution prohibits a government employer from discharging or demoting an employee because the employee supports a particular political candidate.”  For purposes of this case, the Court assumed that the activities in which the employer mistakenly believed that the plaintiff had engaged were, in fact, protected and that no legal exceptions were implicated.  The text of the First Amendment is not clear whether the constitutional right should focus on the employer’s motive or the employee’s actual conduct.  Nonetheless, in a prior case, the Court had found that an employer’s reasonable, but mistaken, belief that an employee had engaged in unprotected petty gossip rather than protected First Amendment conduct was sufficient to relieve the employer of liability.  Therefore, if an employer could avoid liability through a mistaken belief that the employee had not engaged in protected conduct, it could just as easily become liable for acting on a mistaken belief that the employee had engaged in protected conduct even though he had not.

[A] rule of law finding liability in these circumstances tracks the language of the First Amend­ment more closely than would a contrary rule. Unlike, say, the Fourth Amendment, which begins by speaking of the “right of the people to be secure in their persons, houses, papers, and effects . . . ,” the First Amendment begins by focusing upon the activity of the Government. It says that “Congress shall make no law . . . abridging the free­dom of speech.” The Government acted upon a constitu­tionally harmful policy whether [the plaintiff] did or did not in fact engage in political activity. That which stands for a “law” of “Congress,” namely, the police department’s rea­son for taking action, “abridge[s] the freedom of speech” of employees aware of the policy. And [he] was directly harmed, namely, demoted, through application of that policy.

“The employer’s factual mistake does not diminish the risk of” discouraging employees from engaging in protected activities.  The Court rejected the argument that focusing on the employer’s motive would make litigation more expensive for employers and, instead, noted that it would become more difficult for plaintiffs:

a rule of law that imposes liability despite the em­ployer’s factual mistake will not normally impose signifi­cant extra costs upon the employer. To win, the employee must prove an improper employer motive. In a case like this one, the employee will, if anything, find it more diffi­cult to prove that motive, for the employee will have to point to more than his own conduct to show an employer’s intent to discharge or to demote him for engaging in what the employer (mistakenly) believes to have been different (and protected) activities. We concede that, for that very reason, it may be more complicated and costly for the employee to prove his case. But an employee bringing suit will ordinarily shoulder that more complicated burden voluntarily in order to recover the damages he seeks.

Finally, the Court noted that its assumptions about the actual facts of the case could be mistaken and should be evaluated by the trial court:

There is some evidence in the record, however, suggest­ing that [the plaintiff’s] employers may have dismissed him pursuant to a different and neutral policy prohibiting police officers from overt involvement in any political campaign.  . . . . Whether that policy existed, whether [his] supervisors were indeed following it, and whether it com­plies with constitutional standards, see Civil Service Comm’n, 413 U. S., at 564, are all matters for the lower courts to decide in the first instance.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

 

Sixth Circuit Dismisses Title VII and §1983 Claims Brought by Volunteer Nuns

On Friday, the Sixth Circuit Court of Appeals dismissed for lack of subject matter jurisdiction Title VII religious discrimination and retaliation claims brought by two nuns who volunteered with the Red Cross and the Ross County Emergency Management Agency.   Sister Michael Marie v. American Red Cross, No. 13-4052 (6^th Cir. 11-14-14).  Similar constitutional and first amendment claims against the agency were likewise dismissed. The plaintiffs both volunteered with the Red Cross and county agency.  They alleged that the Red Cross denied them promotions to volunteer positions with higher authority and responsibility on account of their religion and terminated them in retaliation for complaining.  They allege that they were later terminated by the county agency for similar reasons and that the Red Cross Executive Director served on the Board of the agency.  They filed with the OCRC and EEOC Charges of Discrimination, which were dismissed for lack of jurisdiction since the nuns volunteered with the respondents and were not employees.  Neither plaintiff received or expected any monetary compensation for their services and did not receive any employment benefits, but were eligible for workers compensation, life insurance and travel reimbursement.  They filed suit in federal court, which dismissed the claims and was affirmed on appeal.

The Court of Appeals determined that coverage under Title VII is limited to common law employees, which depends on a number of factors, such as:

[1] the hiring party’s right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are [2] the skill required; [3] the source of the instrumentalities and tools; [4] the location of the work; [5] the duration of the relationship between the parties; [6] whether the hiring party has the right to assign additional projects to the hired party; [7] the extent of the hired party’s discretion over when and how long to work; [8] the method of payment; [9] the hired party’s role in hiring and paying assistants; [10] whether the work is part of the regular business of the hiring party; [11] whether the hiring party is in business; [12] the provision of employee benefits; [13] and the tax treatment of the hired party.

While this test is most frequently utilized to determine whether an individual is an employee or independent contractor, it can also be applied to determine whether a volunteer is a covered employee.  Unlike other circuits, the Sixth Circuit considers compensation to be just one of the relevant factors, instead of categorically more important.  The Court rejected the plaintiff’s argument that it should be of lesser importance. After noting that the plaintiffs received no compensation or employment benefits, it also noted that they largely controlled when they volunteered and how they performed.  The plaintiffs were in no way economically dependent on the defendants.  The only factors in their favor was that the plaintiffs had worked for the defendants for several years and performed services in the defendants’ core business. Nonetheless, it was debatable whether the nature of their services was like that typically performed by employees or independent contractors.

The Court also found that the plaintiffs did not show that they were retaliated against on the basis of their religious beliefs.  The agency’s executive director had been initially friendly with them, which meant that another factor must have arisen when his behavior allegedly changed years later.  The Court also concluded that they could not show denial of equal protection because they failed to identify any other volunteers who were treated differently in that they were the only two volunteers who criticized the agency’s management.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

June Ends with a Bang with DOL Moving to Amend FMLA Regulations and Three Supreme Court Employment Decisions

The end of June is traditionally a busy week for legal observers since many of the Supreme Court’s most contentious employment decisions are issued before it recesses for the year.  This year was no exception.  However, there were also a number of regulatory matters raised by the Department of Labor which were equally – and maybe more – noteworthy.  First, the DOL has proposed to amend the FMLA regulation defining spouse to require employers in states where same-sex marriage is not recognized – like Ohio -- to provide FMLA leave to employees who were legally married in another state.  Second, the DOL proposed regulations to increase the minimum wage for certain employees of certain federal contractors beginning in 2015.  Next, a unanimous Supreme Court held that the Senate – not the President – gets to decide when it is in recess.  Therefore, Presidential appointments to the NLRB made during brief adjournments were not constitutional.  In addition, a divided Supreme Court found that the First Amendment rights of de factor independent contractors trumped the government’s interest in giving them union rights and requiring them to subsidize through fair share fees the political lobbying activities of unions to which the workers objected.  Finally, a divided Supreme Court found that closely held corporations can assert statutory and First Amendment rights to object to contraceptive coverage mandated by ObamaCare regulations and the government failed to show that less restrictive means existed to achieve its aims.

FMLA Rights of Domestic Partners.  On June 20, the Department of Labor announced that it would be proposing to change the regulatory definition of “spouse” in the Family and Medical Leave Act to include individuals who were legally married  in one country (like Argentina) or state, like Massachusetts, even though they currently reside in a state, like Ohio, which does not recognize that marriage.  Currently, FMLA rights only extend to individuals whose marriage is legal in the state where the employee resides.  The Act itself provides in § 2611(13) that “[t]he term “spouse” means a husband or wife, as the case may be.”    The current regulatory definition provides that: “Spouse means a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized.” Under the proposed rule – which was published in the Federal Register last week on June 27 – same sex and common law marriages will be included in the definition of “spouse” based on the place of celebration instead of the place of residence. The DOL also revised other regulations to replace “husband and wife” with “spouse” and “mother and father” with “parent.”   The DOL will consider comments on the proposed changes which are received before August 11.   The expansion of the rule will affect spousal leave (to care for an ill/injured spouse or during a qualified exigency military leave), child care leave (to care for ill step-children even if the employee is “does not stand in loco parentis” to that child) and parental leave (to care for an employee’s step-parent in a same sex marriage).

The new definition at §825.102 and §825.122 will read as follows:

Spouse, as defined in the statute, means a husband or wife. For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under State law for purposes of marriage in the State in which the marriage was entered into or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition includes an individual in a same-sex or common law marriage that either (1) was entered into in a State that recognizes such marriages or, (2) if entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.

NLRB Recess Appointments.  Last week, a unanimous Supreme Court affirmed the D.C. District and Court of Appeals in finding that President Obama exceeded his authority in appointing three NLRB members during a three day adjournment.   NLRB v. Noel Canning, No.12-1281 (2014).  Under the Constitution, NLRB members must be confirmed by the Senate, although the President has the right under the Constitution to temporarily appoint members when the Senate is in “recess.”  In this case, President Obama appointed three members when the Senate was on a three –day adjournment and not on a self-declared recess.  An employer which lost a case at the NLRB challenged the appointment of the three adjournment-appointed members and, thus, the Board’s quorum to conduct business and make decisions.  The Court ultimately held that Congress is presumptively in recess or in business when it  says it is and the President does not get to decide that for Congress by declaring a three day adjournment to be a recess.   The recess appointments clause was not meant as a routine alternative for the President to avoid Senate confirmation.  In addition, the Court indicated that adjournments of less than 10 days would presumptively not be recesses so that the President could avoid Senate confirmation.   Accordingly, all of the decisions made by those appointed NLRB members are invalid and, if still pending in the legal process, likely will not be enforced by the Courts.  However, there is a legal quorum on the NLRB a present and it has indicated that it intends to act quickly to reconsider (and probably reconfirm) these challenged decisions.

Public Union/First Amendment Rights for Independent Contractors.  On Monday, a divided Supreme Court limited the ability of public unions in Illinois’ to encourage unionization of home healthcare workers (who had traditionally been considered independent contractors) by precluding the unions’ ability to collect “fair share fees” from the home healthcare workers who object under the First Amendment to joining and financially supporting a union.   Harris v. Quinn, No. 11-681 (2014).   The State of Illinois had declared the Personal Assistant (home healthcare workers) to be “employees” of the state by virtue of the fact that the state paid them with Medicaid funds even though they were hired, trained, supervised and fired by individual citizens receiving Medicaid assistance.   As described by the Court’s syllabus, “[o]ther than compensating PAs, the State’s involvement in employ­ment matters is minimal. Its employer status was created by execu­tive order, and later codified by the legislature, solely to permit PAs to join a labor union and engage in collective bargaining under Illi­nois’ Public Labor Relations Act (PLRA).”   The healthcare workers do not receive other state government employee benefits and are not protected by, for instance, sovereign immunity.  Because the home healthcare workers were only partial government employees, there was little service that the union was providing them in exchange for union dues or a fair share fee (to preclude free riders) since Medicaid dictated a uniform rate of pay and the employing citizens governed virtually all other terms and conditions of employment.   Accordingly, the Court refused to extend prior Court decisions to these de facto independent contractors and, instead, applied the traditional First Amendment legal analysis to the propriety of requiring these individuals to pay a fee to a union which they did not join or support.   The Court’s majority concluded that there was no compelling government interest which could not be achieved by less restrictive means that would override the workers’ First Amendment rights.

 

First Amendment Rights of Small Businesses.  On Monday, a divided Supreme Court held that closely-held corporations could exercise First Amendment and statutory rights as “persons.”   Burwell v. Hobby Lobby Stores, Inc.¸ No. 13-354 (2014).  The Court noted that it had previously recognized these rights when raised by non-profit corporations and by for-profit sole proprietorships.  Therefore, when the owners of these businesses objected to being required to pay for methods of contraception which interfered with fertilized eggs, they had standing to raise the claims. The Court noted that it would be impractical for a publicly held corporation to assert similar claims.  On the merits, the Court found that the government had failed to demonstrate the existence of a compelling interest to justify its regulations that could not be addressed with less restrictive measures. 

Minimum Wage for Federal Contractors. In February, President Obama issued Executive Order 13658 requiring federal contractors to increase the minimum wage paid to certain employees to $10.10/hour beginning with contracts issued in 2015. That amount will be tied to the Consumer Price Index and may be adjusted going forward.   This month, the Department of Labor issued proposed regulations to implement this Executive Order.   Importantly, not all federal contractors or hourly employees are covered.  The EO covers mostly those employees covered by the Service Contract Act, Davis-Bacon and work in federal park concessions.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.