Privacy Issues in the Workplace

The attorney in Brandon sued, allegedly multiple causes of action including retaliation for exercising her First Amendment rights in speaking to the reporter. A federal jury in Arizona found in favor of the attorney on her First Amendment and other claims and the county appealed to the Ninth Circuit. The Ninth Circuit found that the comments were not constitutionally protected speech. The attorney had made the comments in the course of her official duties for the county. The attorney was speaking as a legal representative for the county, and her statements related to the very matter that she was handling for the county. In addition, while an employee’s report of employee misconduct may be classified as outside of an employee’s job duties, the Ninth Circuit found that this was not the case here, where the attorney’s statements did not accuse the county of misconduct, merely implied that it had acted without professional advice. As indicated above, free expression analysis is complex and fact -intensive. For a more in- depth discussion on freedom of expression please refer to Liebert Cassidy Whitmore’s Free Expression workbook. iii. Exception – Fair Labor Standards Act Anti-Retaliation Provision The federal Fair Labor Standards Act (“FLSA”) regulates the payment of wages including overtime wages to public employees. It contains an anti-retaliation provision, which provides that it is unlawful for an employer: According to the U.S. Supreme Court, this anti-retaliation provision extends to both written and verbal complaints. 586 However, the complaint must be “sufficient clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.” 587 While this requirement may be met by an “informal workplace grievance procedure,” a federal district court in Florida in 2011 refused to extend the FLSA anti-retaliation provision to a Facebook posting. 588 The court ruled that the Facebook posting was not a serious complaint but a “letting off steam” by the employee “simply voic[ing] her disagreement with her employer’s payment practices on her Facebook page.” 589 The court ruled this was not sufficient for a complaint as an employer must have “‘fair notice’ that an employee ‘is in fact making a complaint about an Act violation,’ rather than ‘just letting off steam.’” 590 b. Investigations into Off-Duty Conduct Unreasonable and highly intrusive investigations into off-duty conduct can also violate employees’ rights to privacy. 591 Courts look to various factors to determine whether an investigation is unreasonable. The factors include the following: To discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the FLSA], or has testified or is about to testify in such proceeding, or has served or is about to serve on an industry committee. 585

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