Jottings By An Employer's Lawyer

Tuesday, May 30, 2006

The Private Sector Implications of Garcetti v. Ceballos

Since I almost never represent public sector employers, I don't pay close attention to those decisions which focus on issues that are unique to government employers. However, anytime the Supreme Court speaks, particularly as we try to discern its course with two new justices, it probably is a good time to pay a little closer attention.

That Garcetti v. Ceballos (S.Ct. 5/30/06) [pdf] might be such a case was hinted at when the Court had it reargued following Justice Alito's confirmation. Today's 5-4 decision is being heralded in some quarters as the first case that clearly would have been decided differently if Justice O'Connor had remained on the bench. Interesting though it is, I will leave that debate to the Supreme Court cognoscenti.

The Court's holding was relatively simple: speech uttered while carrying out one's duties as a governmental employee is not protected by the First Amendment. Justice Kennedy (as the new swing man) went to the heart of the matter:
We hold that 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.
Left open for further refining is exactly when an employee speaks "pursuant to his official duties" and the question of whether academic freedom may be a special, more protected, form of speech.

For the private sector I thought Justice Kennedy's opinion showed both a real world understanding of the work place, and the principle established may carry some weight in two areas that do impact the private sector. With respect to quotes, every employer should like the following:
Ceballos’ proposed contrary rule, adopted by the Court of Appeals, would commit state and federal courts to a new, permanent, and intrusive role, mandating judicial oversight of communications between and among government employees and their superiors in the course of official business. This displacement of managerial discretion by judicial supervision finds no support in our precedents.
And since I am not a big fan of job descriptions, I personally enjoyed the following:
Formal job descriptions often bear little resemblance to the duties an employee actually is expected to perform, and the listing of a given task in an employee’s written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee’s professional duties for First Amendment purposes.
Finally, although not a direct carry over, today's opinion should bolster similar rulings under various whistleblower statutes that employees who make complaints in the course of their regular duties are not in fact whistleblowers, but merely "doing their job." It may also slow what some have seen as the possibility of an emerging constitutional defense for certain conduct in the workplace. See First Amendment Defense in the May 29th National Law Journal.

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