Monday, March 06, 2006

Free speech and work

Well folks, apparently posts regarding municipal workers and language are the hot new thing on this blog. After you check out Ginger's post below on English-only rules in the workplace, you can read this noteworthy story from the Denver Post, which I found in this post by GMU law prof. David Bernstein on the Volokh Conspiracy, a blog that has lots of law professors and lawyers and deals with a variety of issues. Here's a selection from the Post's story to give you the gist:

Arapahoe County is threatening to fire a veteran Public Works employee for promoting the fact that he is an English speaking American."They claim it's offensive and I've been accused of discrimination and harassment, believe it or not, because of this," said Mike Gray, a heavy equipment operator with the Arapahoe County Road and Bridge Department for 16 years. The problems began last spring. Gray, 50, owns a lawn service business on the side. He was routinely driving to work in his pickup truck towing a trailer that he uses to carry lawn mowing equipment for his business. On the side of his trailer, the married father of two affixed a sign that reads "Lawn Services Done With Pride!! By An English Speaking American."The sign also gives Gray's phone number and the lettering is over a background of an American flag."There are a lot of people in the lawn service that are non-English speaking," Gray said. "Customers and different people were telling me that they have a hard time trying to communicate with them about the work they want done on their yards. I just want to let people know they at least can communicate with me when I do work on their property." Gray also wore a hat to work that says "U.S. Border Patrol," which he says was a gift from his son.

Arapahoe County officials told Gray the sign and hat must go or else. In a Nov. 10, 2005, letter, his supervisor Monty Sedlak wrote the following: "Some of your conduct ... is reprehensible and discriminatory to our non-English speaking and/or Hispanic workforce. You are in violation of ... guidelines which ensure a workplace free from harassment and sensitive to the diversity of employees." "You are required to permanently remove your cap from the workplace. It is offensive and harassing. Your business sign, if on work premises, must be completely covered at all times. This behavior is inappropriate and any further incidents of this nature may result in further disciplinary action up to and including termination of employment."

In class we have discussed the steps private employers may take in restricting employees' speech, both at work and outside of it. Obviously, employers have the right to fire an individual if they feel he is being insensitive or offensive towards others.

But this case is interesting because Gray's employer is the county government, not a private company. Bernstein doesn't think that Gray, who is suing on first amendment grounds, has much of an argument, but he is "troubled by the fact that the government, acting as employer, has such censorious powers." In this case, since Gray is only being censored while on the job, I don't think the county's decision is wrong or unconstitutional.

However, this brings up an important question of government censoring speech. While I couldn't find statistics on the total number of people who are employed by some form of federal, state, or local government in the United States, there is no doubt that it is a fairly huge number.

How far should the government be able to go in regulating its employees' speech?
Would it be ok for Arapahoe County to ask Mike Gray to completely remove his sign, or be fired?

Post your comments, I'll continue to add further info/questions to consider.

1 Comments:

Blogger Professor Prenkert said...

The Supreme Court has been active in this area in the last two terms, discussing the contours and limitations of the free speech rights of public employees. As keeps popping up in our discussions, there is a tough balance here for the governmental employer to strike. On the one hand, we don't want the government, even as employer, to censor unpopular speech or expression, especially in the instances when the public has a legitimate interest or concern in what the employee has to say (e.g., whistleblowing). On the other hand, the government, like any employer, has to be allowed some discretion to maintain a functioning workplace with a reasonably disciplined and efficient workforce.

The current approach of the Court has been to set up a framework for balancing those interest. It's called the Pickering/Connick test. Last term the Supreme Court revisited the test in the context of a San Diego cop turned amateur porn star and porn entrepreneur. (It's one of the more salacious, if ridiculous, non-criminal fact patterns in a Supreme Court case in recent years.) The Court had to address whether the cop, the pseudonymous John Roe, was engaged in speech related to his employment and, if so, whether it involved a matter of public concern. Mr. Roe's amateur porn reflected poorly on the department (he appeared in -- and out of -- a police uniform and sold an official SDPD uniform on eBay) and was, therefore, related to his employment. As a result, it could be regulated by the government-employer more readily than if it had not been related to his employment. Second, the Court determined that Roe's conduct was not expression about a matter of legitimate public concnern. The Court commented on that by saying, "[T]his is not a close case." The case was City of San Diego v. Roe.

This term, the Court has heard and (with the recent addition of Justice Alito) will re-hear the case of Garcetti v. Ceballos. This case involves an attorney in the LA District Attorney's office who claims that his quasi-whistleblowing activity should be protected speech. Ceballos wrote a memo outlining what he considered to be police misconduct in the securing of a search warrant, which was later used in a criminal prosecution. Ceballos shared the memo with the defense attorney (believing the relevant law required him to turn over such evidence) and was called as a witness for the defense. Later, Ceballos claims that DA Garcetti and others retaliated against him for submitting the memo to his superiors and turning it over to the defense. The question of whether the memo is protected speech by a public employee and whether the Pickering/Connick test applies is relevant to the resolution of his claims of retaliation. The issue is whether the fact that the speech was purely job-related should mean that it is not protected and subject to the balancing test (i.e., the speech has to be made "as a citizen" rather than as an employee on a matter of personal interest). Basically, the question is one of whether it matters what "hat" the employee has on when he or she speaks: the "citizen hat" or the "employee hat."

In the end, this is just a way-too-lengthy comment providing background and additional information about the underlying issue of this story. Thanks for posting the very interesting story, John.

1:24 PM  

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