Employee Speech & Privacy

A: Employee Speech & Political Participation

It is well settled that a State cannot condition public employment on a basis that infringes the employee’s constitutionally protected interest in freedom of expression. Ceballos.

Rutan v. Republican Party: The First Amendment forbids government officials to take adverse employment action against (or to fail to take beneficial employment action in favor of) public employees solely because they are not supporters of the political party in power.

• Conditioning public employment benefits on the provision of support for the favored political party “unquestionably inhibits protected belief and association.”

  • Concern that this system will lead to coerced belief

• Government’s interests asserted in support of the patronage system fail to justify the burden on First Amendment rights because patronage dismissals are not the least restrictive means of fostering those interests

  • The government can ensure employee effectiveness and efficiency by discharging staff members whose work is inadequate

• The Court recognizes an exception to its rule for “policymaking” employees, who can be discharged for political reasons; the government’s interest in ideological cohesiveness is much stronger for employees of this nature than for lower-level staff

• It is not relevant that the employees challenging the patronage may lack a legal entitlement to the position for which they are denied; nor is it relevant that the employees in this case are not subject to punitive action, but merely denied advancement

• DISSENT (Scalia): The choice between patronage and the merit principle is not so clear that I would be prepared to chisel a single, inflexible prescription into the Constitution.

Note: Implicit in the Court’s opinion is the idea that the employer (or potential employer) is in a position to exercise coercive power over the employee (or potential employee). Were the bargaining power between employees and employers equal, there would be no risk of “coerced belief.”

Ceballos: “When public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”

• General principles:

  • The First Amendment limits the ability of a public employer to leverage the employment relationship to restrict the liberties employees enjoy in their capacities as private citizens. So long as citizens are speaking about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.

  • Pickering: Two inquiries guide interpretation of constitutional protections according public employee speech:

    • Whether the employee spoke as a citizen on a matter of public concern. If the answer is no, the employee has no First Amendment action.

    • Whether the government entity had an adequate justification for treating the employee differently from any other member of the general public. If not, the employee will prevail

• First Amendment protects some expressions related to the speaker’s job, and some expressions made at work. But the First Amendment does not protect expressions made pursuant to official duties (e.g., expressions in official memoranda).

  • Restricting this speech does not infringe any liberties that the employee might have enjoyed as a private citizen

• A functional test will be used to determine whether a speech act is pursuant to an officer’s official duties; this will prevent government employers from abusing this rule by drafting excessively broad job descriptions.

Novosel: An employee has a cause of action for wrongful discharge in violation of public policy where he is discharged for refusing to participate in a political lobbying effort with which he does not agree.

• Concern that employer is using coercive power to hire and fire (cf. Rutan) to coerce its employees to engage in political speech

• Concern that employer is using its economic power to distort the political process; but see Citizens United

B: Employee Privacy

O’Connor v. Ortega: Searches and seizures by government employers or supervisors of the private property of their employees are subject to the restraints of the Fourth Amendment; these searches must be (1) justified at their inception and (2) reasonable in scope.

• The Court adopts a two-part inquiry for determining whether a search of a government employee’s property is constitutional.

  • First, it is necessary to determine whether an employee has a reasonable expectation of privacy in the property searched.

    • This must be done on a case-by-case basis

  • Second, if an employee has a reasonable expectation of privacy, it is necessary to balance the employees’ legitimate expectations of privacy against the government’s need for supervision, control, and the efficient operation of the workplace

    • No warrant requirement; no proximate cause requirement

    • Court declines to address whether individualized suspicion is necessary

• Held: Where a public employer intrudes into the constitutionally protected privacy interests of its employees for non-investigatory, work-related purposes or for investigations of work-related misconduct, the Fourth Amendment requires that the search be (1) justified at the inception and (2) reasonable in scope.

  • A search will be “justified at its inception” when there are reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of work-related misconduct

  • A search will be permissible in scope when “the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the nature of the misconduct”

K-Mart v. Trotti: An actionable “invasion of privacy” is “the intentional intrusion upon the solitude or seclusion of another that is...

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