Employee Rights Post

Posted at 3:00 AM on July 6, 2009 by Ellen Simon

Employee Retaliated Against for Blogging: Bloggers Beware

We have all heard about employees getting into hot water because of their blogs
and online activities:

the Delta flight attendant fired because

she posted a provocative photograph of
herself in uniform without a visible name
or logo

the Google employee who speculated

online about his employer's finances

the Burger King executive who used his

middle school-aged daughter's online
identity to attack a farmworkers'
advocacy group that was trying to
increase pay and improve conditions for
tomato pickers

the computer worker fired because he posted a photograph of his company's

loading dock receiving a rival's shipment of computers

There's even a term for it: DOOCED -- which means getting fired because of
something that you wrote in your weblog.
("Blogger Heather B. Armstrong coined the phrase in 2002, after she was fired from
her Web design job for writing about work and colleagues on her blog, Dooce.com)

Now we have a new case on the subject from the Ninth Circuit Court of Appeals.
In Richerson v. Beckon, the Court ruled against a schoolteacher who claimed
constitutional protection for personal speech on her blog.
Here's what happened in the case.
Tara Richerson worked as a curriculum specialist and institutional coach for the
Central Kitsap School District in Silverdale, Washington.
The job required her to engage in "trusting mentor relationships" with less
experienced teachers in order to give them "honest, critical and private feedback."
Richerson wrote a blog which, according to the opinion, contained highly personal
and vituperative comments about her employers, union representatives, and fellow
teachers.
Although Richerson did not refer to these individuals by name, many were easily
identifiable because of the description of the positions or their personal
attributes. Here's one of Richerson's blog posts about her replacement:
Save us White Boy!
I met with the new me today: the person who will take my summer work and make it a
full-time year-round position. I was on the interview committee for this job and this
guy was my third choice ... and a reluctant one at that. I truly hope that I have to eat
my words about this guy.... But after spending time with this guy today, I think Boss
Lady 2.0 made the wrong call in hiring him ... He comes across as a smug know-it-all
creep. And that's probably the nicest way I can describe him.... He has a reputation of
crapping on secretaries and not being able to finish tasks on his own.... And he's
white. And male. I know he can't help that, but I think the District would have done
well to recruit someone who has other connections to the community.... Mighty White
Boy looks like he's going to crash and burn
You don't have to be a lawyer to sense that this blog was going to getting her into
trouble. Sure enough, when the blog came to light, Jeanne Beckon, the Director of
Human Resources received complaints and several individuals refused to work with
Richerson.
As a result, Beckon transferred Richerson out of her coaching position and into a
classroom teaching position, claiming that Richerson's blog fatally undermined her
ability to enter into trusting relationships as an instructional coach. Richerson sued.

Richerson lost her case in the federal district court and the Ninth Circuit Court of
Appeals affirmed.
The Court held that the "legitimate administrative interests" of the school district
overweighed Richerson's right of free speech under the First Amendment. According
to the opinion:
It is abundantly clear from undisputed evidence in the record that Richersons speech
had a significantly deleterious effect [on the performance of her duties]. [Her
supervisor] provided testimony, not controverted by Richerson, indicating that several
individuals refused to work with Richerson in the future.
Common sense indicates that few teachers would expect that they could enter into a
confidential and trusting relationship with Richerson after reading her blog. [Her
supervisor] need only make a reasonable prediction that such disruption would
occur; she need not demonstrate that it has occurred or will occur to a certainty... .
Accordingly, the district court did not err in concluding that the legitimate interests of
the School District outweighed Richerson's First Amendment interests in not being
transferred because of her speech.
The decision is correct with respect to the current state of public employee speech
law, according to Paul Secunda, one of the law professors who writes on this topic but
the legal test should be changed. As Professor Secunda wrote:
I want to suggest that the Ninth Circuit is right on the current state of public employee
speech law, but also want to point out that the most disruptive public employee speech
gets the least amount of protection under the Pickering framework. It is almost like we
have constitutionalized the heckler's veto in this area of the law and that doesn't make
a whole lot of sense.
So what would I do instead, you ask? I would prefer a test which places a heavier
thumb on the balance on the side of the employee, as long as the employee is talking
upon a matter of public concern, which involves the heart of the First Amendment's
protection in the first place. Under this balance, I would let Richerson yap away and
let other employees drown her out with their own more sensible counter-arguments.
For those who may be interested, Professor Secunda wrote an excellent law review
article: Blogging While(Publicly)Employed: Some First Amendment
Implications which can be found at his post on Workplace Prof Blog.

Of course only government employees have limited First Amendment protections for
blogging about work. It may come as a great surprise to many that private employees
have no Constitutional free speech protection at work.
But, according to Professor Secunda, private employees may be protected
under Section 7of the National Labor Relations Act. (NLRA). Under the
NLRA employees are free to engage in concerted activities in the workplace for their
"mutual aid and protection." Therefore, according to the argument, when employees
are blogging about common workplace issues, they are engaged in protected,
concerted activity under the Act. It sounds like a very good argument to me.
In addition some states have off-duty conduct statutes which generally prohibit
employers from terminating employees for engaging in lawful conduct outside of the
workplace. Some argue that these statutes may protect bloggers(depending in part on
what they are blogging about).
Other employee bloggers have argued for protection under common law tort theories
such as invasion of privacy. Many employers, however, have issued policies making
sure that there is no expectation of privacy on the part of the employee with respect to
blogging at work.
In sum, blogging at work, and blogging about work, are really two different topics.
Employee rights may differ depending on where employees are doing the blogging -on company time, or on private time -- and what they are blogging about.
In both of these circumstances, employers clearly have legitimate concerns about the
content of employee blogs when employee bloggers:

reveal confidential/propriety information

improperly utilize a company logo or trademark

harass, intimidate, and discriminate against co-employees

These concerns can and should be addressed by appropriate corporate policies which
protect legitimate interests without demoralizing employees or creating a repressive
workplace environment.
In the meantime, since the law is quite undeveloped and the waters uncharted in this
area, both employers and employees need to use common sense and tread carefully.
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www.employeerightspost.com Ellen Simon
Of Counsel to McCarthy, Lebit, Crystal & Liffman Co., L.P.A.
Phone: 216-696-1422
101 West Prospect Ave. Suite 1800
Cleveland, Ohio 44115