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Public employer alert: Know when you can discipline employees for speaking out

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in Human Resources

Public employers know they can’t punish employees who speak out on matters of public importance. Government employees have a Constitutional right to free speech.

But that doesn’t mean you must treat with kid gloves every employee who mouths off—or that you can’t legitimately discipline those employees. You just have to make sure you can defend your disciplinary decision by showing you would have done the same thing whether the employee spoke out or not.

Recent case:
Amelia Wilbourne worked as a teacher in the school district her disabled son attended. Wilbourne claimed her son’s teacher abused him, and she complained to the principal. Apparently the confrontation didn’t go well, and Wilbourne’s conduct resulted in a reprimand being placed in her file.

Wilbourne sued, alleging that her First Amendment rights had been violated.

The court explained that in a free-speech case, the employee must first show that she spoke out on a matter of public importance and must somehow connect that to the discipline. If she does, then the public employer must prove that it would have done the same whether she spoke out or not.

In this case, the court concluded Wilbourne hadn’t shown she was speaking out on a matter of public importance, since her complaint involved her son, not other disabled students. (Wilbourne v. Forsyth County School District, No. 08-12094, 11th Cir., 2008)

Final note:
The school district was ready to show it would have reprimanded any teacher for the confrontation.

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