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.

Ohio Supreme Court Denies Relief In Two Employment Cases

This week, the Ohio Supreme Court issued two per curiam decisions.  In the first, the Court concluded that there was “some evidence” showing that OPERS did not abuse its discretion when it denied pension benefits to an independent contractor psychiatrist hired by the Lucasville prison despite the amount of control that the prison exercised. State ex rel. Sales v. Ohio Pub. Emps. Retirement Bd., Slip Opinion No. 2019-Ohio-1568.  In the second decision, the Court ruled that the Cuyahoga County Common Pleas Court lacked jurisdiction to restrain the City of Cleveland from changing the starting time of its union firefighters from 8:30 a.m. to 7:00 a.m. because such matters are within the exclusive jurisdiction of SERB.  State ex rel. Cleveland v. Russo, Slip Opinion No. 2019-Ohio-1595.


According to the Court’s opinion, the pro se psychiatrist signed a Personal Services Contract with the prison which identified him as an independent contractor, required him to work 16 hours/week for up to 8 hours/day and required him to submit an invoice in order to be paid.  He was issued 1099 tax forms and did not receive any fringe benefits, or unemployment or workers compensation coverage.   The agreement was renewed several times.  After he terminated the contract, he sought service credits from the Public Employee Retirement System.  OPERS denied his application and appeal, as did a Franklin County magistrate, but the Court of Appeals reversed based on the amount of control the prison exercised over him.   The prison provided him with an office while he was there, provided him with some training, issued him a badge, provided him with malpractice coverage, set his work schedule, and required him to clock in and out.  The court acknowledged that it was unlikely that any psychiatrist could be an independent contractor under such conditions.  The Court reversed because the appeal was subject to an abuse of discretion standard that must affirm OPERS if there is any evidence that could support its decision.  The OPERS regulations distinguishing between employees and contractors favored independent contractor status because he was not carried on payroll, submitted invoices, received no fringe benefits and was identified as an independent contractor, etc. This was “some evidence” supporting the OPERS decision to deny service credit.


According to the Court’s opinion, the firefighter union had filed an unfair labor practice charge over the City’s intention to change the shift starting time.  It then filed for a temporary restraining order, which was granted on the grounds that the change could affect child custody arrangements.  The City sought a mandamus, which was granted because SERB possesses exclusive jurisdiction over disputes covered by the collective bargaining agreement.  No independent statutory or common law right supported the union’s requested relief.


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.

Divided Sixth Circuit Partially Upholds §1983 Challenge to Termination of Pickerington City Employee

On Friday, a divided Sixth Circuit Court of Appeals reversed summary judgment in favor of the City of Pickerington on a §1983 claim based on how the pre-termination hearing was conducted by the newly appointed acting City Manager when the plaintiff was not given notice of sexual harassment allegations before the hearing and was not permitted to view any of the pornography evidence (from more than four years earlier) gathered against him.  Lane v. City of Pickerington, No. 13-4073 (6^th Cir. 11-14-14).  The Court also denied immunity to various city officials based on the failure to provide adequate pre-hearing notice or procedural due process during the pre-disciplinary hearing.  However, the Court affirmed dismissal of the remaining claims because the plaintiff could not show that he had been defamed and any delays in the post-termination process (which granted him partial relief in ordering his reinstatement) were attributable to state-court litigation and not the defendants.

According to the Court’s opinion, the plaintiff alleged that he had been friendly with the former City Manager, who told him shortly before that manager was fired that he had been directed to fire him and other employees.  The personnel director told them not to worry about mere rumors.  However, on the first day of the new acting city manager, the plaintiff’s computer was searched for evidence that he had been unlawfully deleting city documents.  No such evidence was found.  However, some pornographic images from four years earlier were found on the hard drive, in violation of City policy.  Only one other computer was inspected.   The plaintiff was given less than one day’s notice of a pre-disciplinary hearing – for violating the technology policy -- without any indication that he could be fired or that he could bring an attorney.

During the hearing, he was asked about the pornography, but was refused his request to view these images.  He could not remember them, but speculated that they might have been sent to him in emails or that someone else could have view the images after he logged in for the day, but while he was out of the office. A subsequent inspection revealed cookies from pornographic web sites.   The plaintiff was also asked about sexually inappropriate comments he allegedly made to female co-workers, but which he did not recall.  A few days later, he was fired.

The plaintiff appealed to the personnel appeals board, but was told that he was an unclassified employee.  After filing a mandamus action, which was only upheld on appeal, the Board held a hearing, found he was a classified employee and reduced his termination to a suspension.  That decision remains on appeal in state court.   The City also informed the Bureau of Unemployment Compensation that he had been terminated for sexual harassment and violating the City’s technology policy in, among other things, viewing pornography at work.

On appeal, the Sixth Circuit majority found that the plaintiff “was denied adequate pre-deprivation due process.”

 

 Under Loudermill, a predeprivation hearing must include an explanation of the employer’s evidence. Lane was denied the opportunity to see the photographs he was accused of viewing and retaining, depriving him of a “meaningful opportunity to tell his side of the story.” . . . Additionally, a jury could find that Lane was not given notice of all the charges against him.  Lane was notified of the charge that he “viewed and retained” offensive images, but he was not notified of any sexual-harassment or hostile-work-environment charges, even though Taylor stated in a termination memorandum to the State of Ohio that Lane “created a hostile working environment that makes the women feel uneasy when Paul is present,” and stated in a letter to the Ohio Bureau of Unemployment Compensation that, “in regards to sexual harassment,” . . . . . The lack of meaningful notice and an opportunity to be heard is evident given that Taylor based his decision to terminate Lane in part on Lane’s “failure to present any evidence to the contrary at the [pre-termination] hearing.”

In light of the due process violation, the Court denied qualified immunity to the individual defendants: 

Their sole joint argument is that they infringed no clearly established constitutional right because no reasonable official would have known that terminating Lane, after notice, for viewing pornography was impermissible. This argument conflates the clearly established procedural right at issue with the reason for the termination, and ignores the patent inadequacy of the notice. Although the Constitution does not require an “elaborate” predeprivation hearing, it required Defendants to provide Lane a “meaningful opportunity to tell his side of the story” before he was fired.  . . .. A reasonable official would have known that Lane was entitled to view the evidence against him. Additionally, a jury could find that Lane was terminated based on allegations not contained in the notice of the predisciplinary conference; a reasonable official would thus have known the notice was constitutionally inadequate.

The Court also remanded the issue of the City’s respondeat superior liability because the district court did not address it after dismissing the two substantive claims. “[A] municipality may be liable for the actions of its employees or agents under § 1983 where the “acts may fairly be said to represent official policy.”    

Nonetheless, the Court rejected the post-termination due process allegations on the grounds that the delay in reinstating the plaintiff was attributed almost entirely to state court litigation and not intentional misconduct by the defendants.  It also rejected the defamation claims on a number of grounds, including the reasonable basis for the allegations against the plaintiff and qualified privilege.

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.

Ohio Supreme Court Dismisses Criminal Indictment Based on Prosecutorial Misuse of Information From Garrity Statement.

This morning the Ohio Supreme Court issued a decision dismissing a criminal indictment against a police officer because the prosecutors reviewed the information gathered from a Garrity statement obtained during an internal investigation even though no information from the statement was presented to the grand jury or during any trial. State v. Jackson, Slip Opinion No. 2010-Ohio-621. In short, the Court held that no one involved in an internal investigation (which involves obtaining a Garrity statement) may testify before the grand jury and neither the grand jury prosecutor nor the trial prosecutor may review the Garrity statement in preparation for trial even if no evidence or witnesses obtained from the Garrity statement is presented to a jury.

According the Court’s opinion, a police officer had been placed on administrative leave and then was involved in a bar fight, where one of the patrons informed the responding patrol officer that the suspended/fighting officer had possessed a firearm inside the tavern (in violation of Ohio law). The suspended/fighting officer was then investigated by Internal Affairs. Under Garrity v. New Jersey (1967), 385 U.S. 493, as a public employee, he could not be compelled to cooperate with the internal investigation in violation of his Fifth Amendment right against self-incrimination by being told to choose between his maintaining his employment and incriminating himself. Rather, he was given a “Garrity” warning: nothing he said during the internal investigation would be used in a criminal prosecution, but failing to respond completely and truthfully to the questions could lead to disciplinary action. After receiving the warning, he answered the questions of the Internal Affairs investigating officer and identified a witness who was otherwise unknown to the police.

The Prosecutor’s Office then presented evidence to the grand jury about the officer’s unlawful possession of a firearm in a tavern. This evidence did not include any admissions or other information from the accused officer, including any evidence about the new witness. It did, however, include testimony from the Internal Affairs investigating officer limited to whether an officer should carry a firearm while on administrative leave and to the fact that he had interviewed the officer as part of an internal investigation. He did not disclose any information obtained from the officer during the Internal Affairs investigation (although the grand jury could conceivably presume the content of the statement from the fact that the officer was being prosecuted following the interview).

A new prosecutor was assigned to handle the trial and somehow both the grand jury and trial prosecutors came into possession of the officer’s Garrity statement before the commencement of a criminal trial. In fact, it was unclear whether the grand jury prosecutor came into possession of the statement before the grand jury returned the indictment. When the officer learned this, he moved to dismiss the indictment on the grounds that the government had improperly used his Garrity statement to assist his criminal prosecution. The trial court agreed, but the Court of Appeals reversed. The appellate court determined that the trial preparation of the prosecuting attorney should not benefit from a review of the Garrity statement, but that the indictment had not been tainted because the Internal Affairs officer did not reveal any information from the Garrity statement to the grand jury. Thus, the proper remedy was to purse the prosecutor’s file of the Garrity statement, reassign the case and recommence the process from the time of the indictment. The Supreme Court reversed and held:

In a criminal proceeding against a public employee, the state may not make direct or derivative use of the employee’s statement that was compelled under
threat of the employee’s removal from office (“Garrity statement”) — The state makes derivative use of a Garrity statement when the prosecutor presents to the grand jury testimony from a witness to a Garrity statement — The state makes derivative use of a Garrity statement when the prosecutor reviews a Garrity statement in preparation for trial — When the state fails to prove that it did not make any use of a Garrity statement in obtaining an indictment, the indictment must be dismissed.

Rather, the Court concluded that the prosecution must be able to prove that its evidence was independently derived of the Garrity statement:

[T]he Kastigar court established a two-prong test that the
prosecution must satisfy where a witness makes the claim that his or her immunized testimony was used: (1) the government must deny any use of the accused’s own immunized testimony against him or her in a criminal case; and (2) the government must affirmatively prove that all of the evidence to be used at trial is derived from sources wholly independent of immunized testimony.” (Emphasis sic.) State v. Conrad (1990), 50 Ohio St.3d 1, 4, 552 N.E.2d 214.

Thus, in this case, the prosecution violated Garrity by utilizing a witness from the internal investigation: ”The state makes derivative use of a Garrity statement when the prosecutor presents to the grand jury testimony from a witness to the statement.” No harm which results from a broken Garrity promise can be harmless. Thus, the only proper remedy is dismissal of the indictment. “When the state fails to prove that it did not make any use of a Garrity statement in obtaining an indictment, the indictment must be dismissed.” On the other hand, if the misuse had only occurred after the indictment had been obtained, the proper remedy would be limited to suppressing the improper evidence during the criminal trial (even if the trial prosecutor had knowledge of the Garrity statement).

Although Court recognized that this will create a hardship for small departments and entities (which might not have enough qualified personnel to both conduct the internal investigation and the criminal investigation), it suggested delaying the internal investigation until after the conclusion of the criminal investigation (which would then permit the accused employee to continue working and drawing a public salary following a legal breach). The Court did not suggest, but should be consider, retaining another entity or department to conduct the internal investigation.

The Court further explained:

Although the issue of liability for turning over a compelled statement is not before us, we note that a public employer can ensure that it does not violate the defendant’s right against self-incrimination only by refraining from providing a compelled statement to the prosecutor when a criminal proceeding ensues. A bright-line prohibition against providing a compelled statement to a prosecutor is both workable and practical. First, because a prosecutor is not permitted to make any use of a compelled statement, denying the prosecutor the opportunity to view the statement will not hinder the prosecutor’s ability to prepare for trial. Second, when a defendant cannot allege that the prosecutor has made use of the statement, there is no need to conduct a time-consuming Kastigar hearing. Finally, when there is no threat that a prosecutor will eventually see the contents of a compelled statement, public employees will be more willing to comply with internal investigations.

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.