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Topic: "Free Speech" | Main

Wisconsin public employee collective bargaining statute amendments declared unconstitutional
September 15, 2012 by Ross Runkel at LawMemo

A teachers' union sought declarative and injunctive relief against the governor, claiming that statutory amendments dealing with municipal employees' collective bargaining rights and payroll deductions of dues and pension contributions were unconstitutional.

The trial court declared the statute unconstitutional. Madison Teachers v. Walker (Wisconsin Circuit Ct 09/14/2012)

(1) Certain portions of the statute violated the free speech clauses of the Wisconsin and US constitutions. Although there is no constitutional right to collective bargaining, the statute imposes burdens on the speech and associational rights of employees represented by unions which burdens are not imposed on other employees. They cannot negotiate wage increases greater than the cost of living, they cannot pay dues by payroll deductions solely because the dues go to labor organizations. A ban on fair share agreements means that union members bear the cost of bargaining for non-members who receive the befits of bargaining. Requiring unions to be recertified annually burdens members with the full costs of the election.

(2) The trial court applied strict scrutiny to the equal protection claims because of the infringement on speech rights. The statute creates two classes of employees (represented and non-represented), and the defendants "offer no defense of the statute that would survive strict scrutiny."

(3) Certain portions of the statute violated the Wisconsin constitution's home rule amendment, violated the constitutional bar on impairment of contracts, and deprived employees of property without due process.



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Summary of Knox v. SEIU
June 24, 2012 by Ross Runkel at LawMemo

My summary of Knox v. SEIU at SCOTUSblog.com: Knox knocks unions on mid-year assessment for non-members.



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Mid-year union dues increase: Hudson notice required, opt-in not opt-out
June 21, 2012 by Ross Runkel at LawMemo

The US Supreme Court this morning held that "when a public-sector union imposes a special assessment or dues increase, the union must provide a fresh Hudson notice and may not exact any funds from nonmembers without their affirmative consent."

Knox v. Service Employees Intl Union (US Supreme Ct 06/21/2012)

This is a remarkable decision for two reasons.

First, the Court has never before held that unions must issue a Hudson notice before changing the amount of dues. Hudson notices have always been based on an after-the-fact look-back based on the previous year's audited accounts.

Second, the Court has never before held that unions cannot collect fees from nonmembers unless they affirmatively opt in. The Hudson notice system has always been based on the idea that nonmembers can get an after-the-fact refund.

The union representing California public sector employees has an agency shop agreement which requires nonmembers to pay an annual fee for "chargeable" expenses - nonpolitical costs related to collective bargaining. In June 2005 the union sent out its annual Hudson notice which estimated that chargeable expenses would be 56.35% of its total expenditures. After the 30-day period that nonmembers had to object, the union announced a 25% increase to fund a broad range of political expenses, but nonmembers were given no choice as to whether they would pay into this fund.

The US Supreme Court held (7-2) that

"when a public-sector union imposes a special assessment or dues increase, the union must provide a fresh Hudson notice and may not exact any funds from nonmembers without their affirmative consent."

The Court described this case as one involving compelled funding of the speech of other private speakers or groups, which is akin to compelled speech and compelled association. Therefore, it is subject to "exacting First Amendment scrutiny." In order to prevent the union from extracting a loan from unwilling nonmembers, the union must issue a fresh Hudson notice and must exempt nonmembers unless they opt in.

Two Justices, CONCURRING in the judgment, criticized the majority for adopting an opt-in system of fee collection which was "not contained in the questions presented, briefed, or argued."

Two Justices, DISSENTING, pointed out that unions have always been allowed to calculate each year's fee based on its expenses during the previous year. Although an imperfect system, it is not unconstitutional.



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SCOTUS Argument recap: Mootness could squelch union fees case
January 13, 2012 by Ross Runkel at LawMemo

Knox v. SEIU was argued at the US Supreme Court Tuesday.

The issue is whether a public sector union must send a Hudson notice when it implements a mid-year dues and fees increase.

Another issue is whether this case is now moot.

For my recap of the oral arguments, see Argument recap: Mootness could squelch union fees case at SCOTUSblog.



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When union fees go up, must a “Hudson notice” go out?
January 05, 2012 by Ross Runkel at LawMemo

I've written an article for SCOTUSblog on Knox v. Service Employees International Union (SEIU) [here].

The US Supreme Court will hear oral arguments on January 10 on the following two questions:

(1) Whether a state, consistent with the First and Fourteenth Amendments, may condition employment on the payment of a special union assessment intended solely for political and ideological expenditures without first providing a Hudson notice that includes information about that assessment and provides an opportunity to object to its exaction;

and

(2) Whether a state, consistent with the First and Fourteenth Amendments, may condition continued public employment on the payment of union agency fees for purposes of financing political expenditures for ballot measures.




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Supreme Court will decide whether union's assessment for political expenses must be preceded by Hudson notice
June 28, 2011 by Ross Runkel at LawMemo

In Knox v. Service Employees Int'l Union (US Supreme Ct cert granted 06/27/2011) the US Supreme Court will decide whether a union's assessment for political expenses must be preceded by a Hudson notice.

This case presents the question of whether a union is required - pursuant to Chicago Teachers Union v. Hudson, 475 US 292 (1986) - in addition to an annual fee notice to employees, to send a second notice when adopting a temporary mid-term fee increase. The mid-term fee increase in this case was designed to create a fund to be used for a "broad range of political expenses." The trial court held such a notice is required; the 9th Circuit (2-1) reversed.

The US Supreme Court granted certiorari to review the 9th Circuit judgment.

The 9th Circuit said that the use of the prior year method to assess nonmember dues was a practical necessity because the Hudson notice must be based on audited financial statements, and any money from the mid-term fee increase used for "non-chargeable" purposes would be refunded after the current year's audit.

The DISSENT argued that the annual Hudson notice was insufficient to enable nonmembers of the union to protect their First Amendment rights upon imposition of the temporary assessment. "The Union’s interest in this case is not a 'right' to nonmembers’ funds. The Union’s interest lies in receiving a fair contribution to its collective bargaining expenses. The Union has no legitimate interest, however, in collecting agency fees from nonmembers to fill its political war-chest."



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State statutes forbidding injunction of peaceful labor picketing are unconstitutional (2-1)
January 28, 2011 by Ross Runkel at LawMemo

In Ralphs Grocery v. UFCW (California Ct App 01/27/2011)The union set up an informational picket line in front of the entrance to a non-union store in a commercial shopping center. The store sued to enjoin this activity.

The trial court denied an injunction, relying on two state statutes (the Moscone Act and Labor Code Section 1138.1) which prohibit or limit such injunctions. The California Court of Appeal reversed.

The court applied a strict scrutiny analysis because the statutes are content based (they apply to speech related to labor disputes but not to speech on other topics), and "select which views the state is willing to have discussed or debated." The court found the statutes to be in violation of the state constitution because they "selectively create a free speech right applicable only to the few, while excluding all others, in the absence of a compelling state interest."

The DISSENT argued that the store lacked standing to raise a constitutional free speech claim because it does not contend that its own free speech is burdened.

[Ed. Note: Ralphs Grocery v. UFCW (different case with similar facts) is pending before the California Supreme Court, and raises the issue of whether the Moscone Act violates the 1st amendment of the US constitution.]



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SCOTUS takes 1st amendment employment case
October 12, 2010 by Ross Runkel at LawMemo

Today the US Supreme Court granted certiorari to decide whether the first amendment protects government employees from retaliation for petitioning on a matter of purely private concern.

The case: Borough of Duryea v. Guarnieri [Details, briefs]

In 2003 the Borough dismissed Guarnieri from his job as police chief; Guarnieri filed a union grievance which led to an arbitration; Guarnieri prevailed and was reinstated to his position. Upon his return to work in 2005, the Borough issued eleven directives as to what Guarnieri must do or could not do on the job. In 2006 the Borough withheld $338 in overtime.

Guarnieri sued and won a jury verdict on his claim that the directives and the withholding of overtime were in retaliation for filing and winning his 2003 grievance, in violation of the 1st amendment. The 3rd Circuit affirmed in Guarnieri v. Duryea Borough (3rd Cir 02/04/2010).

The US Supreme Court granted certiorari to review the 3rd Circuit judgment.

The Borough argued that the 1st amendment does not protect government employees from retaliation for the filing of petitions unless they address matters of public concern.

However, the 3rd Circuit followed Foraker v. Chaffinch, 501 F.3d 231 (3d Cir 2007) which held that "a public employee who has petitioned the government through a formal mechanism such as the filing of a lawsuit or grievance is protected under the Petition Clause from retaliation for that activity, even if the petition concerns a matter of solely private concern."

Question Presented by the ceriorari petition:

Whether the Third Circuit erred in holding that state and local government employees may sue their employers for retaliation under the First Amendment’s Petition Clause when they petitioned the government on matters of purely private concern, contrary to decisions by all ten other federal circuits and four state supreme courts that have ruled on the issue.


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State anti-captive audience law survives suit
May 09, 2010 by Ross Runkel at LawMemo

A federal judge on Friday dismissed a suit attacking Oregon's anti-captive audience law, which went into effect in January.

Oregon statute [SB 519] prohibits an employer from taking an adverse action against an employee who declines to attend an employer-sponsored meeting where the primary purpose is to present the employer's opinion on "political" matters.

This includes opinions on "the decision to join, not join, support or not support" a labor organization.

A suit attacked the statute as being preempted by the National Labor Relations Act and on constitutional grounds. The suit was brought by local and national business groups.

A federal judge dismissed the suit Friday on the ground that the plaintiffs could not show any injury at this time.

[Article]



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Supreme Court will decide constitutionality of NASA background investigation.
March 08, 2010 by Ross Runkel at LawMemo

The US Supreme Court announced today that it will review a controversial decision from the 9th Circuit - National Aeronautics and Space Administration [NASA] v. Nelson.

Nelson requested a preliminary injunction to prevent implementation of NASA's requirement for in-depth background investigations of "low risk" contract employees. The trial court denied the request for a preliminary injunction. The 9th Circuit reversed.

Given the open-ended and highly private questions authorized by the investigation which did not appear narrowly tailored to any legitimate government interest, the 9th Circuit concluded the trial court erred in finding that Nelson was unlikely to succeed on his informational privacy claim. The court stated the balance of hardships tipped sharply towards Nelson, who faced a stark choice - either violation of his constitutional rights or loss of his job.

The US Supreme Court granted certiorari to review the 9th Circuit judgment.

We expect oral arguments to be scheduled for the fall of 2010.

Question presented:

1. Whether the government violates a federal contract employee’s constitutional right to informational privacy when it asks in the course of a background investigation whether the employee has received counseling or treatment for illegal drug use that has occurred within the past year, and the employee’s response is used only for employment purposes and is protected under the Privacy Act, 5 U.S.C. 552a.

2. Whether the government violates a federal contract employee’s constitutional right to informational privacy when it asks the employee’s designated references for any adverse information that may have a bearing on the employee’s suitability for employment at a federal facility, the reference’s response is used only for employment purposes, and the information obtained is protected under the Privacy Act, 5 U.S.C. 552a.



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Ban on political payroll deductions does not infringe unions' 1st amendment rights
February 24, 2009 by Ross Runkel at LawMemo

Today the US Supreme Court decided Ysursa, Idaho Secretary of State v. Pocatello Education Association.

Here is the official syllabus:

Idaho's Right to Work Act permits public employees to authorize payroll deductions for general union dues, but prohibits such deductions for union political activities. Respondents-a group of Idaho public employee unions-sued, alleging that the ban on payroll deductions for political activities violated the First and Fourteenth Amendment s. The District Court upheld the ban at the state level, but struck it down as it applies to local governments. In affirming, the Ninth Circuit stated that, while Idaho has the ultimate control over local governmental units, it did not actually operate or control their payroll deduction systems. The court applied strict scrutiny to hold that the statute was unconstitutional as applied at the local level.

Held: Idaho's ban on political payroll deductions, as applied to local governmental units, does not infringe the unions' First Amendment rights.

(a) Content-based restrictions on speech are "presumptively invalid" and subject to strict scrutiny. Davenport v. Washington Ed. Assn., 551 U. S. 177 , ___. The First Amendment does not, however, impose an obligation on government to subsidize speech. See Regan v. Taxation With Representation of Wash., 461 U. S. 540 . Idaho's law does not restrict political speech, but rather declines to promote that speech by allowing public employee checkoffs for political activities. Idaho's public employee unions are free to engage in such speech as they see fit. They simply are barred from enlisting the State in support of that endeavor. Idaho's decision to limit public employee payroll deductions as it has does not infringe the unions' First Amendment rights. The State accordingly need only demonstrate a rational basis to justify the ban. Idaho's justification is the interest in avoiding the reality or appearance of government favoritism or entanglement with partisan politics. See, e.g., Civil Service Comm'n v. Letter Carriers, 413 U. S. 548 . And the State's response to the problem is limited to its source-political payroll deductions. Cf. Davenport, supra. The ban plainly serves the State's interest in separating public employment from political activities.

(b) The ban at issue is valid at the local level. The same deferential review applies whether the ban is directed at state or local governmental entities. Political subdivisions have never been considered sovereign entities but are instead "subordinate governmental instrumentalities." Reynolds v. Sims, 377 U. S. 533 . The State's legislative action is subject to First Amendment scrutiny whether it is applicable at the state level, the local level, both, or some subpart of either, but no case suggests that a different analysis applies depending on the level of government affected. The ban furthers Idaho's interest in separating the operation of government from partisan politics, and that interest extends to all public employers at whatever level of government.

504 F. 3d 1053, reversed.

Roberts, C. J., delivered the opinion of the Court, in which Scalia, Kennedy, Thomas, and Alito, JJ., joined, and in which Ginsburg, J., joined as to Parts I and III. Ginsburg, J., filed an opinion concurring in part and concurring in the judgment. Breyer, J., filed an opinion concurring in part and dissenting in part. Stevens, J., and Souter, J., filed dissenting opinions.



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Three new Supreme Court cases
February 19, 2008 by Ross Runkel at LawMemo

US Supreme Court will hear case on union's waiver of court forum for statutory claim.

14 Penn Plaza LLC v. Pyett (Certiorari granted February 19, 2008) [Details, briefs]

When employees sued claiming age discrimination, the employer filed a motion to compel them to take the case to arbitration. The employees were covered by a collective bargaining agreement which prohibited age discrimination and also said "All such claims shall be subject to the grievance and arbitration procedure [in the collective bargaining agreement] as the sole and exclusive remedy for violations." The trial court denied the motion to compel arbitration, and the 2nd Circuit affirmed. The 2nd Circuit held that "arbitration provisions contained in a [collective bargaining agreement], which purport to waive employees' rights to a federal forum with respect to statutory claims, are unenforceable."

See discussion of this case at Daily Developments in EEO Law and at ADR Prof Blog: Supreme Court hears third arbitration case this term: 14 Penn Plaza v. Pyett and at Workplace Prof Blog: Supreme Court Certs

US Supreme Court will hear case on union's use of agency fees for out-of-unit litigation.

Locke v. Karass (Certiorari granted February 19, 2008) [Details, briefs]

The Maine State Employees Association (MSEA) is the exclusive bargaining agent for certain state workers, and collects compulsory "agency fees" from non-members who are in the bargaining unit. Some of these fees are transferred to Service Employees International Union (SEIU), MSEA's national affiliate. MSEA included in its calculation of chargeable expenditures those costs of litigation (by both itself and SEIU) that was germane to collective bargaining. This meant that nonmembers contributed, through their service fees, to some litigation that was not undertaken specifically for their own bargaining unit, but rather was conducted by or on behalf of other units or the national affiliate, sometimes in other states. Included within this general category of expenditures were the salaries of SEIU's lawyers, and other costs of providing legal services to bargaining units throughout the country. Costs of litigation that was not related to collective bargaining, however, were not included in the service fees assessed to MSEA's nonmembers. The 1st Circuit held that MSEA may lawfully charge non-members for this "extra-unit litigation" so long as it is germane to the union's collective bargaining duties.

US Supreme Court will hear case on ERISA anti-alienation.

Kennedy v. Plan Administrator for Dupont Savings and Investment Plan (Certiorari granted February 19, 2008)
Decision below: 5th Cir 08/15/2007

William Kennedy's ERISA plan contained a no-alienation provision. William designated his wife Liv as the sole beneficiary. Upon their divorce, Liv agreed to be divested of all her rights. However, there was no Qualified Domestic Relations Order (QDRO). The 5th Circuit held that an ERISA Qualified Domestic Relations Order is the only valid way a divorcing spouse can waive her right to receive her ex-husband's pension benefits under ERISA.



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Shopping mall cannot prevent newspaper employees from urging boycott of mall tenants
December 27, 2007 by Ross Runkel at LawMemo

Fashion Valley Mall v. NLRB (California 12/24/2007) (4-3)

The Supreme Court of California granted the request of the United States Court of Appeals for the District of Columbia Circuit to decide whether, under California law, a shopping mall may enforce a rule prohibiting persons from urging customers to boycott a store in the mall. The court held that the right to free speech granted by article I, section 2 of the California Constitution includes the right to urge customers in a shopping mall to boycott one of the stores in the mall.

Union members employed by a newspaper distributed leaflets to customers entering and leaving the store of a tenant in a shopping mall. (This was to protest the tenant running ads in the newspaper, which the union claimed treated its employees unfairly.) Mall officials required the union members to leave because they did not have a Mall-issued permit. In order to obtain a permit, an applicant must agree not to urge a boycott of any shopping mall tenant.

The union filed unfair labor practice charges with the National Labor Relations Board (NLRB), and the Board ruled that the Mall violated Section 8(a)(1) by maintaining its permit requirement, which had the purpose and effect of shielding tenants from otherwise lawful consumer boycott handbilling. The Mall petitioned the DC Circuit for review, and the DC Circuit asked the California Supreme Court to clarify the following question: "Under California law, may [the Mall] maintain and enforce against the Union its [permit rule]?" The California court answered in the negative, thus assuring that the DC Circuit will uphold the NLRB decision.

The California court noted that the California constitution grants greater protection for free speech than the federal constitution does. A private shopping mall "can be a public forum for free speech if it is open to the public in a manner similar to that of public streets and sidewalks." Robins v. Pruneyard Shopping Center, 23 Cal3d 899, affirmed in Pruneyard Shopping Center v. Robins, 447 US 74 (1980).

After reviewing Pruneyard and other intervening decisions, the court held that the shopping mall's rule was viewpoint-neutral but not content-neutral "because it prohibits speech that urges a boycott while permitting speech that does not," and therefore is subject to strict scrutiny. The mall's purpose of maximizing tenants' profits "is not compelling compared to the Union's right to free expression."

The DISSENT argued that Pruneyard was wrong and has been rejected overwhelmingly by other jurisdictions. Even if Pruneyard is not overruled, it can be distinguished on the ground that the activity involved in this case is not compatible with the normal use of the property, which is to allow the "businesses on the premises to do business."

Earlier report on this case: Workplace Prof Blog: California Shopping Malls are Public Forums




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Union loses "opt-in" agency fee case
June 14, 2007 by Ross Runkel at LawMemo

It does not violate the First Amendment for a State to require its public-sector unions to receive affirmative authorization from a nonmember before spending that nonmember’s agency fees for election-related purposes.

So says a unanimous US Supreme Court in Davenport v. Washington Education Association, decided June 14, 2007.

Washington State allows public-sector unions to charge nonmembers an agency fee equivalent to membership dues and to have the employer collect that fee through payroll deductions. An initiative approved by state voters (§760) requires a union to obtain the nonmembers’ affirmative authorization before using their fees for election-related purposes. The Washington Supreme Court thought this "opt in" requirement was an unconstitutional burden on the union's first amendment rights.

The US Supreme Court recognized that the state was creating a content-based speech regulation. However, the Court upheld §760 by applying precedents dealing with election campaign finance restrictions.

The basic reasoning:

  • The union has this money only because the state granted to the union "the power to tax" members of the bargaining unit.
  • "As applied to public-sector unions, §760 is not fairly described as a restriction on how the union can spend “its” money; it is a condition placed upon the union’s extraordinary state entitlement to acquire and spend other people’s money."
  • The state placed a reasonable, viewpoint-neutral limitation on the use of these funds.
  • The state did not impermissibly distort the marketplace of ideas.


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Davenport v WEA developments
May 17, 2007 by Ross Runkel at LawMemo

Washington state law requires unions to get pre-expenditure permission (an "opt in" requirement) from non-members before using their agency shop payments for political purposes.

The US Supreme Court is poised to decide whether the Washington State Supreme Court erred by holding that law unconstitutional as an abridgement of free speech. Davenport v. Washington Education Association.

Now the Washington legislature has amended the statute to be more favorable to the union. So the impact of the US Supreme Court's decision will apply only to expenditures that pre-dated the amendment.

On May 11, 2007 the Washington State Legislature amended the statute by adding one sentence that clarifies the meaning of the word "use." The statutory amendment:

A labor organization does not use agency shop fees when it uses its general treasury funds to make such contributions or expenditures if it has sufficient revenues from sources other than agency shop fees in its general treasury to fund such contributions or expenditures.

All parties have filed supplementary briefs within the past few days. All briefs are here.



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Union dues and the 1st amendment
January 10, 2007 by Ross Runkel at LawMemo

A union defeat is in the air at the US Supreme Court in Davenport v. Washington Education Association.

A public sector union collects money from nonmembers, as required by a collective bargaining agreement backed up by a state statute.

The state statute says the union can spend the money for political purposes only if the nonmember first "affirmatively authorizes" it.

The union wants to spend the money first, subject to a possible refund later on.

The Supreme Court of the State of Washington ruled in favor of the union, saying the statute requiring nonmembers to "opt in" was a violation of free speech.

I have previously said I thought the sate court was wrong. Davenport v. Washington Education Association - Review granted.

Paul Secunda at Workplace Prof Blog has collected some extracts from today's oral argument at the Supreme Court: Analysis of Oral Transcript in Davenport Supreme Court Union Fees Case. He concludes that there are no more than two Justices who might vote in favor of the union.



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US Supreme Court Docket # 06-1
July 09, 2006 by Ross Runkel at LawMemo

The first US Supreme Court certiorari petition of the 2006-2007 session is an employment law case: Averill Park Central School District v. Cioffi, Docket number 06-1.

I don't see the Court being interested in this one. They decide only about 75 cases each year, out of thousands of petitions, and there needs to be a good reason to pick one case out of the many.

The case involves a public school teacher (and athletic director) who spoke out about a serious hazing incident to his employer - the school board. He claims his job was abolished because of this, so he sued claiming retaliation in violation of the 1st amendment.

The 2nd Circuit looked at the case (Cioffi v. Averill Park Central School District (2nd Cir 04/04/2006)) and concluded that the teacher was speaking out on a matter of public concern, and that he had 1st amendment protection. In passing, the 2nd Circuit distinguished the case from Garcetti v. Ceballos (US Supreme Court 05/30/2006), even though Garcetti had not yet been decided.

The Supreme Court might summarily remand for reconsideration in light of the Garcetti decision, but don't expect to see a full-blown decision on this one.



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Garcetti v. Ceballos - Employee speech loses constitutional protection (5-4)
May 30, 2006 by Ross Runkel at LawMemo

No surprise as to the outcome. Dramatic statement as to the constitutional rule.

In Garcetti v. Ceballos (US Supreme Court 05/30/2006) the Court said:

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.

Ceballos, a deputy DA, sued his employer claiming retaliation in violation of the 1st amendment.

Ceballos wrote a memorandum to his supervisor in which he claimed that a deputy sheriff had lied in an application for a search warrant. Ceballos claimed that he was demoted in retaliation for this.

The US Supreme Court held that Ceballos was not speaking "as a citizen," and his statement has no constitutional protection. None at all.

Because Ceballos' speech had no constitutional protection, there was no need to apply the balancing test used in Pickering v. Board of Educ., 391 US 563 (1968) and Connick v. Myers, 461 US 138 (1983).

Employment Law Memo notified its readers about this case shortly after it was decided on 05/30/2006.

Four Justices wrote three DISSENTING opinions arguing that Ceballos' speech should not be categorically excluded from 1st amendment protection, and that a balancing test should be applied.

Other comments on the Garcetti v. Ceballos case:



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Supreme Court re-argument on employee speech
March 19, 2006 by Ross Runkel at LawMemo

A rare event: The US Supreme Court will hear a second argument in Garcetti v. Ceballos - a significant employee free speech case.

This case was argued on October 12, 2005, and the Court ordered that it be re-argued on March 21, 2006. The main intervening event was the retirement of Justice O'Connor and the appointment of Justice Alito. The conventional wisdom is that the Court was split 4-4, and needs Justice Alito's vote to break the tie.

Richard Ceballos, a deputy district attorney, sued his employer (the County) and his supervisors claiming they retaliated against him in violation of the 1st amendment.

Ceballos wrote a memorandum to his supervisor in which he claimed that a deputy sheriff had lied in an application for a search warrant. Ceballos claimed that he was demoted in retaliation for this. The trial court granted summary judgment for the individual defendants on the ground of qualified immunity. The 9th Circuit reversed. The US Supreme Court granted certiorari to review the 9th Circuit decision.

The 9th Circuit concluded that the individual defendants were not entitled to qualified immunity because "the law was clearly established that Ceballos' speech addressed a matter of public concern and that his interest in the speech outweighed the public employer's interest in avoiding inefficiency and disruption."

A concurring 9th Circuit judge argued that the 9th Circuit's jurisprudence in this area of law is wrong. He would hold that public employees are not protected by the 1st amendment when their speech is uttered in the course of carrying out their employment obligations. That is because Connick v. Myers, 461 US 138 (1982), requires that the public employee be speaking "as a citizen," which the judge says Ceballos was not.



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US Supreme Court unanimously upholds Solomon Amendment
March 06, 2006 by Ross Runkel at LawMemo

The United States Supreme Court held unanimously that the Solomon Amendment is constitutional. Rumsfeld v. Forum For Academic and Institutional Rights (US Supreme Court 03/06/2006).

(1) The Court held that the Solomon Amendment provides that in order for a law school and its university to receive federal funding, the law school must offer military recruiters the same access to its campus and students that it provides to the nonmilitary recruiter receiving the most favorable access.

(2) The Court held that the Solomon Amendment is constitutional. Although there are limits to Congress' ability to place conditions on the receipt of federal funds, a funding condition cannot be unconstitutional if it could be imposed directly. This condition was one that Congress could have imposed directly without violating the 1st amendment.

The Solomon Amendment regulates conduct, not speech. (a) Although law schools must send emails and distribute fliers if they provide that service to other recruiters, these elements of speech are incidental to the statute's regulation of conduct, and cannot be compared to forcing students to pledge allegiance to the flag or forcing a Jehovah's Witness to display a motto on his license plate. (b) Schools are not "speaking" when they host interviews and receptions on campus. Nothing about recruiting suggests that law schools agree with the recruiters' speech. Law schools are not restricted as to what they can say about the military's policies. (c) This case is not like the flag burning cases because the conduct here is not so inherently expressive, and even if this were expressive conduct the Solomon Amendment would be constitutional under the flag burning cases.

The Solomon Amendment does not violate the law schools' freedom of expressive association. The statute does not require the schools to accept members it does not desire (distinguishing the case where a statute required the Boy Scouts to accept a homosexual scoutmaster). Recruiters are not part of the school. Students and faculty are free to voice their disapproval of the military's message.

Opinion by Chief Justice Roberts. Justice Alito did not participate.



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US Supreme Court re-argument in employee speech case
February 17, 2006 by Ross Runkel at LawMemo

The US Supreme Court has ordered that Garcetti v. Ceballos (Docket No. 04-473) be re-argued. This case was argued in October. Since then, Justice Alito has replaced Justice O'Connor.

Order for re-argument | Transcript of first oral argument (10/12/2005) | Decision below: Ceballos v. Garcetti (9th Cir 03/22/2004)

Ceballos sued his employer (the County) and his supervisors claiming they retaliated against him in violation of the 1st amendment. Ceballos wrote a memorandum to his supervisor in which he claimed that a deputy sheriff had lied in an application for a search warrant. Ceballos claimed that he was demoted in retaliation for this. The trial court granted summary judgment for the individual defendants on the ground of qualified immunity. The 9th Circuit reversed. The US Supreme Court granted certiorari on February 28, 2005 to review the 9th Circuit decision.

The 9th Circuit concluded that the individual defendants were not entitled to qualified immunity because "the law was clearly established that Ceballos' speech addressed a matter of public concern and that his interest in the speech outweighed the public employer's interest in avoiding inefficiency and disruption." A concurring 9th Circuit judge argued that the 9th Circuit's jurisprudence in this area of law is wrong. He would hold that public employees are not protected by the 1st amendment when their speech is uttered in the course of carrying out their employment obligations. That is because Connick v. Myers, 461 US 138 (1982), requires that the public employee be speaking "as a citizen," which the judge says Ceballos was not.



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Solomon amendment case briefs
October 30, 2005 by Ross Runkel at LawMemo

Rumsfeld v. Forum For Academic and Institutional Rights is the Solomon Amendment case which will be argued in the US Supreme Court on December 6.

Here is the official "QUESTION PRESENTED"

The Solomon Amendment, 10 U.S.C. 983(b)(1), as amended by the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005, Pub. L. No. 108-375, Div. A., Tit. V, Subtit. F, § 552(a) to (d), 118 Stat. 1911, withholds specified federal funds from institutions of higher education that deny military recruiters the same access to campuses and students that they provide to other employers. The question presented is whether the court of appeals erred in holding that the Solomon Amendment likely violates the First Amendment to the Constitution and in directing a preliminary injunction to be issued against its enforcement.



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Bannering was not unlawful secondary picketing
June 10, 2005 by Ross Runkel at LawMemo

It can be a fine line between free speech protected by the first amendment and secondary picketing that violates the National Labor Relations Act (NLRA). Today's issue of Employment Law Memo tells the story:

Overstreet v. United Brotherhood of Carpenters (9th Cir 06/08/2005).

The NLRB's Regional Director sued the union under NLRA Section 10(l) seeking to enjoin an alleged violation of Section 8(b)(4)(ii)(B). The trial court denied the injunction; the 9th Circuit affirmed (2-1).

The union had a dispute with three contracting companies, objecting to their failure to hire union employees and alleged failure to meet local labor standards. In an effort to induce the contractors to change their practices, the union put pressure on 18 "retailers" who did business with them. Near each retailer, the union set up a 4x15 foot banner that read "SHAME ON [NAME OF RETAILER]" in large red letters, with the words "LABOR DISPUTE" in smaller black letters on each side. Individual union members held the banners from 20 to several hundred feet from the retailers' entrances. The union members remained stationary, did not block entrances, and did not confront customers.

(1) The court announced a new standard for granting Section 10(l) injunctions. Previously the standard was highly deferential to the Regional Director: whether the Regional Director had "reasonable cause" to believe the union violated Section 8(b)(4)(ii)(B). The court adopted the same standard used in Section 10(j) cases, which is the ordinary standard generally governing issuance of injunctions, including whether the Regional Director has a "fair chance of success on the merits." Additionally, because this particular case had 1st amendment overtones, the court said there should be no deference at all to the NLRB's conclusions and that there must be a "particularly strong" showing of likely success.

(2) The court held that the Regional Director was unlikely to succeed on the merits. The union conceded that its goal was to dissuade customers from patronizing the retailers, which had the goal of encouraging the retailers to cease doing business with the contractors. Thus, the issue was whether the union's actions fit the "threaten, coerce, or restrain" portion of Section 8(b)(4)(ii)(B). Here there was no "coercing" because there was no "picketing," and no one-on-one physical interaction or communication. The court also concluded that the union was not engaged in "signal picketing" (a signal to employees of the secondary employers) because the banners were directed toward passing motorists and were not directed at employees.

(3) The court rejected the argument that the banners were fraudulent in that they used the phrase "labor dispute" - suggesting that the union had a primary dispute with the retailers rather than with the contractors. The banners were not false because the union in fact did have a labor dispute with the secondary businesses (retailers).

The DISSENT said the Regional Director was likely to prevail on the "fraudulent speech" claim because the banners falsely conveyed the message that the union had primary labor disputes with the secondary employers, that is, that the retailers were treating their employees shamefully.

My view: Let the law review articles begin.



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Military recruiting issue goes to Supreme Court
May 02, 2005 by Ross Runkel at LawMemo

On May 2, 2005 the US Supreme Court agreed to decide "Whether the court of appeals erred in holding that the Solomon Amendment's equal access condition on federal funding likely violates the First Amendment to the Constitution and in directing a preliminary injunction to be issued against its enforcement?" Rumsfeld v. Forum For Academic and Institutional Rights (Docket No. 04-1152).

Lots of details at SCOTUSBlog: Court to rule on "Solomon Amendment"

Many law schools have tried to exclude military recruiters, and the government response has been to threaten withdrawal of funding - not just for the law school, but for the whole university. The law involved is the "Solomon Amendment."

Many schools have policies against discrimination on the basis of sexual preference, and refuse to allow the use of school resources for recruiting by employers who engage in sexual preference discrimination - including the military.

The 3rd Circuit held (2-1) that the law schools were likely to prevail on their first amendment arguments, and were entitled to a preliminary injunction against enforcement of the Solomon Amendment. Forum For Academic and Institutional Rights v. Rumsfeld (3rd Cir 11/29/2004). The 3rd Circuit issued a stay pending review by the Supreme Court.

My view: I'm doubtful that there are five justices that will agree with the 3rd Circuit. Schools remain free to teach and to say whatever they like, and to hire faculty on whatever basis they like. Any restriction on free speech (or association) seems quite incidental, especially when weighed against the Congress' powers regarding the spending power and the powers relating to war and the military.



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Whistleblowing Assistant DA gets to US Supreme Court
February 28, 2005 by Ross Runkel at LawMemo

The Supreme Court has another chance to tell the 9th Circuit how the 1st amendment works for public employees. Assistant DA Richard Ceballos sent a memo to his supervisor alleging that a sheriff deputy lied on a search warrant. Ceballos later filed suit claiming his superiors retaliated against him for this.

The last time the Supreme Court had a public employee 1st amendment case from the 9th Circuit the Justices reversed the 9th Circuit without even hearing oral arguments. Ouch. That was San Diego v. Roe (12/06/2004) [full text pdf] in which a police officer was discharged for selling videos of himself masturbating. The 9th Circuit actually thought that was protected by the US constitution. The Supreme Court's per curiam decision (a rare item) said it was "not a close case."

Now comes Garcetti v. Ceballos - certiorari granted February 28, 2005. [9th Circuit decision pdf] The 9th Circuit went through the drill of asking (1) whether Ceballos' speech was a matter of public concern [YES] and, if so, (2) whether his interests outweighed the public employer's interest [YES].

The real question? Whether his speech lacks constitutional protection because it was uttered in the course of carrying out his employment obligations.

9th Circuit Judge Diarmuid O'Scannlain, in a concurring opinion, argued that the 9th Circuit's jurisprudence in this area is flat wrong. (He couldn't know that the Roe case would be summarily reversed.) He traces it all to Roth v. Veteran's Administration, 856 F.2d 1401 (9th Cir 1988), in which the court said that when a public employee speaks on matters of public importance, that speech automatically comes within the definition of a matter of public concern.

My view: The 9th Circuit's Roe decision was off the wall. Its Ceballos decision seems to lose track of what the 1st amendment is for. It is not to protect employees in the conduct of their day-to-day employment duties. Perhaps there should be laws to protect assistant DAs from getting demoted when they tell the boss that a police officer rigged a search warrant. I could vote for that. But a constitutional right? I don't think so.



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