Speaking out in the Workplace
Oswald, R. Scott, The Public Manager
Although public employees retain the right of free speech in the workplace, that speech must be outside the scope of their official duties and must regard some legitimate public concern.
Public sector employees do not check the constitutional right of free speech at the door when they enter public service. According to the Supreme Court, a public employer cannot infringe on constitutionally protected rights as a condition of employment. In the course of their employment, employees who speak out on waste, fraud, abuse, or illegal activity and then face retaliation as a result are protected from retaliation by 42 U.S.C. [section] 1983.
Signed into law in 1871 to combat the adverse treatment of African Americans following the Civil War, Section 1983 creates a private cause of action for those who are deprived of their constitutional rights under the color of state law. Over the years Section 1983 has been used as a tool to protect public sector employees who are deprived of a constitutional right, such as free speech, by their employers.
Both public sector managers and employees should be aware of Section 1983's ramifications. Employers should appreciate the consequences of the statute to avoid potential liability, and employees should know when their speech is protected and what redress is available in the event of retaliation. Section 1983 jurisprudence is far too vast to completely address here, so I will focus on what is considered protected speech and who can be sued, as well as the implications of liability.
Claims Under Section 1983
The federal courts require a Section 1983 claim to include:
1. that an employee speaks on a matter of legitimate public concern
2. that the employee speaks as citizen, not as a public employee
3. that the employer takes an adverse action against the employee as a result of the employee's protected speech, such as termination or demotion.
The first element--that an employee's speech is on a matter of legitimate public concern--may seem a bit amorphous, but it is easily fulfilled in most cases. Speech regarding a matter of legitimate public concern is speech designed to bring a breach of the public trust or wrongdoing to the attention of the public.
Matters such as the misappropriation of public funds, waste, fraud, and inefficient management have qualified as matters of legitimate public concern. An employee speaking on a matter that he reasonably believes is illegal or fraudulent is within the protections of the statute provided the other elements are met.
Speaking as a Citizen
Employees must not only speak on matters of legitimate public concern; they also must speak as citizens. Although an employee still retains free speech rights, not all speech is protected. The courts are reluctant to deprive government employers of all control over their employees' conduct in the workplace.
Public employers cannot provide efficient management and distribution of public services if they have no control over employees. Obviously, a government office cannot operate efficiently if every employment decision runs afoul of the constitution. To strike a balance between protecting legitimate constitutional speech and efficient government operation, the courts have required that employees must speak as a citizen to qualify for Section 1983's protections.
In 2006 the Supreme Court clarified what it means to speak as a citizen in the seminal case of Garcetti v. Ceballos. Distilling the Supreme Court's opinion down to its ultimate holding, an employee must speak outside the scope of her official job duties. When the Supreme Court considered the facts of the case the focus of its analysis was whether the plaintiff's speech was in furtherance of his job duties. The fact that the plaintiff's official job duties specifically required him to investigate and report on the very issue his speech involved meant that he was speaking as a public employee, not as a citizen. …