Privacy Issues in the Community College Workplace

The NLRB does not have jurisdiction over public employers in California. The Public Employment Relations Board (PERB) is charged with administering the collective bargaining statutes governing California public employees, and would likely look to the NLRB for guidance on social media issues. Employers should seek legal counsel before disciplining employees when their social media communications involve protected activity, including discussions about union activity or the terms and conditions of employment, even when the posts also involve derogatory comments that may violate the employer’s policies. ii. Exception – Freedom of Expression Speech Protected by California Constitution and First Amendment Freedom of expression is protected by the First Amendment of the United States Constitution, as made applicable to the states by the Fourteenth Amendment. ( Stanley v. Georgia (1969) 394 U.S. 557, 559.) "Congress shall make no law . . . abridging the freedom of speech, or of the press . . . ." (U.S. Const., Amend. I.) "Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press." (Cal. Const., art. I, § 2, subd. (a).) In the 1968 decision Pickering v. Board of Education , the United States Supreme Court made it clear that public employers generally cannot stifle the First Amendment rights their employees would otherwise enjoy as citizens in commenting on matters of public interest. 528 However, the Court also recognized that public employers have an interest in the effective and efficient fulfillment of their responsibilities. 529 Therefore, a public employer’s ability to maintain workplace efficiency must be balanced against a public employee’s interest as a citizen in commenting upon matters of public concern. The test in Pickering (which in 2014 the Ninth Circuit determined is applicable to speech by professors and teachers) 530 is: (1) whether the academic speech addresses matters of public concern and, if so, (2) whether the employee’s interest in the speech outweighs the educational institution’s interest in providing efficient public services. 531 Starting with Pickering v. Board of Education 532 and evolving with Connick v. Myers 533 and Garcetti v. Ceballos 534 , the United .States. Supreme Court has developed a balancing test to determine when a public employee can assert a First Amendment retaliation claim. Such claim can be asserted only if: (1) the public employee spoke on a matter of public concern, (2) the public employee spoke as a private citizen rather than as a public employee, i.e., if the speech was not a result of the employee’s “official duties,” and (3) if on balance, the government had no adequate justification for treating the employee as it did, i.e., the public employee’s interest as a citizen in commenting upon matters of public concern outweighs the interest of the public employer in promoting the efficiency of its public services. 535 Garcetti , however, does not apply to academic speech, which follows the test in Pickering . 536 The California Constitution also protects the right of free speech. It provides:

Privacy Issues in the Community College Workplace ©2021 (c) Liebert Cassidy Whitmore 171