July 2012 Bar Bulletin
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July 2012 Bar Bulletin

Loose Lips, Pink Slips

By Karen Sutherland


Perhaps you saw the $25,000 fine Miami Heat coach Erik Spoelstra received for "critical public comments" and wondered, "Whatever happened to freedom of speech?"

Generally, when people talk about freedom of speech, they are referring to the First Amendment, which states as follows: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

What this means, of course, and what many people do not understand, is that the First Amendment only limits the government's ability to control speech; it does not prohibit private employers or organizations from punishing employees or members for untoward speech. Thus, if you work for a private sector employer, your employer can restrict your speech and can take action against you for violating its policies. So, a baseball manager can be fined for criticizing an umpire and a rookie can be sent back to the minors for a tweet deemed inappropriate by the ownership.

Unlike private sector employees, government (public) employees have a constitutionally protected interest in freedom of speech.1 Even then, however, not all speech by a public employee is constitutionally protected. The military is a prime example.

The courts recognize that public employers have an interest in maintaining an efficient, effective workplace, and apply a balancing test in free speech cases. To prevail, the employee must show: (1) the speech was protected by the First Amendment; and (2) the protected speech was a substantial or motivating factor in an adverse employment decision.2

Courts determine whether the employee's speech is constitutionally protected as a matter of law.3 In order to make this determination, the court weighs the employee's right to speak out on matters of public concern against the public employer's interest in effectively and efficiently serving the public.4 Once the employee meets these requirements, the employer has an opportunity to prove it would have made the same adverse employment decision regardless of the protected speech.5

Courts sometimes break this inquiry down into a four-step analysis:

  • First, the public employee must establish that the speech dealt with a matter of public concern.
  • Second, the public employee must prove that his or her interest in "commenting upon matters of public concern" is greater than the employer's interest in "promoting the efficiency of the public services it performs."
  • Third, the public employee must demonstrate that the speech was a substantial or motivating factor in the adverse employment decision of which the employee complains.
  • Finally, if the employee can prove all of the first three elements, the burden shifts to the employer to prove that it would have reached the same decision even in the absence of the protected conduct.6

The first two steps are questions of law for the court to resolve. The second two are ordinarily fact questions.7

Even though the First Amendment does not apply to private sector employers, some employee speech is protected by Section 7 of the National Labor Relations Act (NLRA), which has been a hot issue as it pertains to employees' use of social media.8 Under Section 7 of the NLRA, employers cannot prohibit employees from "protected concerted activity," which includes discussing terms and conditions of employment with coworkers and appealing to coworkers for assistance regarding working conditions, such as by posting comments on Facebook.

Employers' policies are unlawful if they explicitly restrict Section 7 activities. Otherwise, they are unlawful only upon a showing that: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the policy was in response to union activity; or (3) the policy has been applied to restrict the exercise of Section 7 rights.

Employee speech may also be protected by anti-discrimination laws. For example, Title VII of the Civil Rights Act of 1964 requires reasonable accommodation of religious expression in the workplace unless it would result in undue hardship to the employer.9 The reasonableness of an accommodation is analyzed on a case-by-case basis. "[W]hat may be a reasonable accommodation for one employee may not be reasonable for another."10

Other examples of protected speech include whistleblower complaints and laws protecting an employee from retaliation for coming forward as a complainant or witness. In each case, the scope of protection is defined by the applicable law.

Karen Sutherland is the chair of the Employment and Labor Law Practice Group at Ogden Murphy Wallace, PLLC. She can be reached at ksutherland@omwlaw.com. This article is a brief overview of a complex area of the law; it is neither complete nor comprehensive and should not be relied on for any purpose.

1 Dicomes v. State, 113 Wn.2d 612, 625, 782, P.2d 1002 (1989) (citing Perry v. Sindermann, 408 U.S. 593, 597–98, 92 S. Ct. 2694 (1972), and Pickering v. Board of Ed., 391 U.S. 563, 574, 88 S. Ct. 1731 (1968)).

2 Mt. Healthy City Sch. Dist. Board of Ed. v. Doyle, 429 U.S. 274, 287, 97 S. Ct. 568 (1977); White v. State, 131 Wn.2d 1, 10, 929 P.2d 396 (1997).

3 White, 131 Wn.2d at 11.

4 Connick v. Myers, 461 U.S. 138, 147–48, 103 S. Ct. 1684 (1983); Dicomes, 113 Wn.2d at 625.

5 Mt. Healthy, 429 U.S. at 287.

6 Binkley v. Tacoma, 114 Wn.2d 373, 382, 787 P.2d 1366 (1990); Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir. 2003).

7 Binkley, 114 Wn.2d at 382.

8 The NLRB acting general counsel has issued three reports describing social media cases reviewed by his office: Memorandum 11-74 dated August 18, 2011; Memorandum 12-31 dated January 24, 2012; and Memorandum OM 12-59 dated May 30, 2012; available online at http://www.nlrb.gov/publications/operations-management-memos.

9 Trans World Airlines v. Hardison, 432 U.S. 63, 74, 97 S. Ct. 2264, 2271 (1977).

10 Smith v. Pyro Mining Co., 827 F.2d 1081, 1085 (6th Cir. 1987).


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