Dear Legal Mailbag:
Being a bit of a blowhard myself, I have been interested in learning about the free speech rights of educators. Recently, I took an excellent school law course, and I understand that long ago the United States Supreme Court established a two-part test for determining whether speech by a public employee is entitled to First Amendment protection. As I understand it, for our speech to be protected, first, it must be on a matter of public concern, and second, the importance of the speech must outweigh any disruption the speech causes to the educational process.
It is one thing to recite these tests, and it is quite another to apply them in the real world. I know that it is hard to predict how the courts will balance the importance vs. disruption of particular speech in accordance with the second test, and I am careful not to criticize teachers for their posts on social media unless they cause a serious problem. But I am also having trouble with the first test, i.e., how to determine whether speech relates to a public concern.
Sadly, my interest in this topic is not purely intellectual. Recently, I read some posts on social media by a teacher slamming me as her principal for “trying to work her to death.” Given that her posts seemed to me to be a clear case of whining about personal grievance rather than public concern, I called her in and gave her a talking to about her unprofessional posts. But I was then surprised to get a threatening email from our local teacher union president telling me to “cease and desist” from interfering with the teacher’s right under the Teacher Negotiation Act to engage in “protected concerted activity.”
Does Legal Mailbag have any idea what this pushy union president is talking about?
What’s Up with That?
As you correctly point out, matters of personal grievance are not protected by the First Amendment. Unfortunately, there is more to the story than the First Amendment, and this teacher’s post on social media about you (and her working conditions) may be protected by the Teacher Negotiation Act.
Many states have conferred union rights on public employees similar to those conferred on private sector employees by the original collective bargaining law, the National Labor Relations Act (1935). In Connecticut, public employees have collective bargaining rights through the Teacher Negotiation Act (TNA) for certified board of education employees, through the Municipal Employees Relations Act (MERA) for municipal employees and non-certified board of education employees, and through the State Employees Relations Act (SERA) for state employees. A basic right in such statutory schemes is the right to engage in protected concerted activity without employer interference. Was this employee just whining or was she reaching out to her colleagues to see how they have been treated? If the posts were the latter, this employee may have a claim that she was exercising her rights under the TNA.
We do not have any school cases in Connecticut on social media as protected concerted activity. But we find a cautionary tale in a private sector case, Three D, LLC d/b/a Triple Play Sports Bar and Grille v. N.L.R.B., 629 Fed. Appx. 33 (2d Cir. 2015). There, the Second Circuit affirmed an NLRB ruling that discipline of employees for “liking” and commenting on a post on Facebook critical of their employer violated their Section 7 rights under the NLRA by restraining the employees from exercising their right to concerted activity. In that case, the NLRB found that the employer’s social media policy prohibiting “inappropriate discussions about the company” was overly broad and interfered with employee’s protected rights. Three D, LLC d/b/a Triple Play Sports Bar and Grille and Jillian Sanzone and Vincent Spinella, 361 NLRB No. 31 (N.L.R.B. 2014).
Legal Mailbag can’t say for sure whether this employee has a claim. But public employers considering action against employees for statements on social media must remember that the First Amendment is not the only protection to keep in mind. Sometimes it is best to count to ten and move on rather than picking a fight.
Originally appeared in the CAS Weekly Newsletter.