|Jottings By An Employer's Lawyer|
Tuesday, May 30, 2006
The Private Sector Implications of Garcetti v. Ceballos
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.