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No Need to Show Actual Workplace Disruption Before Regulating Employee Speech
The Sixth Circuit Court of Appeals recently held that the potential disruptiveness of an employee’s speech is sufficient to outweigh its First Amendment value. Gillis v Miller, Case Nos. 16-1245/1249 (CA 6, January 6, 2017). Public employers do not need to wait until an employee’s speech causes an actual disruption in the workplace before taking action. If an employer can reasonably predict that an employee’s speech will cause disruption, then the First Amendment will not protect the employee from discipline.
This case involved a memorandum authored and posted by two correctional officers at the Bay County Jail. The memorandum advised union employees about union representation rights and encouraged employees to disclose the substance of any interview to union officials. At the time the memorandum was written, jail management was conducting an internal investigation into alleged prescription drug trafficking at the jail. One officer who authored the memorandum resigned shortly after it was posted, and the Bay County Sheriff’s Department terminated the co-author two months later.
Both officers sued, arguing that their discharges were in retaliation for posting the memorandum and, therefore, in violation of their First Amendment right to free speech. The department maintained that it discharged the two officers for misconduct unrelated to the memorandum.
Reviewing the First Amendment claims, the Sixth Circuit held that the department’s interests in thoroughly and efficiently investigating allegations of employee misconduct and in maintaining the confidentiality of that investigation outweighed any free speech interests the correctional officers had when they posted the memorandum. The court applied the Pickering balancing test, which assesses whether an employee’s free speech interests outweigh an employer’s interests in efficiently providing its services to the public.
The Sixth Circuit held that when balancing the two interests, a public employer does not have to show an actual workplace disruption for its interests to outweigh an employee’s free speech interests. Instead, a court must analyze whether the employer could reasonably predict that the employee’s speech would cause disruption, in light of the time, place, manner, and context of the speech. The court saw no reason for an employer to allow disruption of the office and the destruction of working relationships to occur before taking action.
The Sixth Circuit held that the department could have predicted the officers’ memorandum would disrupt legitimate law enforcement interests in the jail and hinder its ability to conduct an efficient investigation. The level of disruption caused by a memorandum encouraging officers not to cooperate with an investigation and to ignore superiors’ orders about confidentiality was significant enough for the court to conclude that the First Amendment did not protect the memorandum or the officers who wrote it.
First Amendment cases generally are fact-specific and decided on a case-by-case basis. Therefore, although this case stands for the proposition that an employer does not have to wait until an employee’s speech causes an actual disruption in the workplace to discipline the employee, schools should contact legal counsel before taking such a course of action.