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Public employers, take note: Some employee speech may be protected

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in Employment Law,Human Resources

Public employees have some rights that other employees may not. One of those is the right to speak out on matters of public importance without being punished. But that right isn’t available to employees performing their official duties.

As the following case shows, public employers should consider whether the speech is protected before punishing an employee for speaking up.

Recent case: Cynthia Davis worked for the University of Texas as an information systems audit manager. When she discovered what she believed was child pornography on university computers used by physicians, she was understandably upset.

Davis reported her findings up the chain of command and was surprised when she was largely ignored. She then wrote a long letter to her bosses, explaining that she had reported the matter to the FBI. She also raised questions about financial ties among high-level employees. UT officials apparently did not receive this information well, and Davis quit after she concluded that she was about to be fired.

Then she sued, alleging retaliation. A lower court dismissed her suit, but the 5th Circuit Court of Appeals reinstated it.

The appellate judges said that her FBI referral was not protected speech because auditing computer systems was her job. However, nothing in her job responsibilities included examining financial ties. The court sent that part of her free speech case back to the trial judge, with orders for him to decide whether her report dealt with a matter of public importance. (Davis v. McKinney, et al., No. 07-20184, 5th Cir., 2008)

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