Expert: Michael Troy - 11/2/2002

Question
i am a sworn public employee employed by a law enforcement agency. my wife, who is not employed by this agency, has had issues with her ex-husband for some time. she created a website that detailed something provable that her ex had done to her. the intentions of the website was to educate others so as to aid them in preventing something similar from happening to them. in addittion to stating what happened, the website had a ton of prevention information as well as helpful links. the ex attempted a libel suit. it was thrown out because there was no false information stated.

anyway, he filed a complaint with my employer and my employer contends that i should have no part in that website and is comtemplating terminating my employment because of my association with it. they feel the content is "emabarrasing to the department". the department is not mentioned or referred to in the website.

again, i want to emphasize that i did not creat the page. i am only associated to the page because i am married to the creator. the only input i had during the creation was to advise my wife of libel concerns and stuff of that nature.

my question is this.

1. how far can an employer govern what you can and cannot say or be associated with outside the scope of your employment and when not on "employer time"?

2. is there any case law on this type of situation?

3. is there anything you may want to add?

thank you  

Answer
Hi Jack,

First of all, let me say that I am not allowed to provide specific legal advice here.  Because I may not have all the facts and because I am not licensed to practice in your State, such advice would constitute unauthorized practice of law.  However, I am happy to speak generally on the issue of free speech and employment.

Ordinarily speaking, an employer-employee relationship is an "at-will" contract.  In other words, if there is no contract which says differently, an employer may terminate you at any time for any reason, or no reason at all.  Similarly, you may quit at any time for any reason, or no reason at all.

That said, there are many statutory exceptions.  For example an employer usually may not fire you because of your race, religion, etc.  A government employer also usually may not fire you for engaging in First Amendment activities.  

The rule used to be free speech did not apply to employment.  There is a famous quote from Oliver Wendall Holmes, before he became Chief Justice, in a case involving a policeman fired for engaging in free speech activities:  "The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman."

However, since that time, the Court has recognized that there are protections for government employees from pressure to keep them from engaging in free speech activities.  Typically, the Courts apply a balancing test, balancing the interests of the employee in engaging in free speech activities vs. the governments interest in maitaining order and functionality in the workplace.

To read more about this, you may find this article interesting:

http://caselaw.lp.findlaw.com/data/constitution/amendment01/14.html

Be sure to click on the links to the actual cases if you want to read more about them.  

Usually courts tend to give more discretion to the government in more critical jobs like law enforcement officers.  But they must show some disruption caused by the activity.  For example, courts have allowed firing a policeman who was a member of the KKK in his off-duty hours, even though he was never shown to have done anything illegal, even though it was off-duty activity, and even though membership in the KKK is Constsitutionally protected under the right of association.  The court held that, the mere public knowledge of his membership could damage the police force credibility in minority neighborhoods, and that was more important than his right of association.

I don't know what the content of this page is, but given that you didn't write it, it doesn't mention the employer or have anything to do with the employer, they would have a hard time showing how it affects workplace efficiency or your performance of your duties.

That said, I've seen cases where an employer knows they can't legally take action against an employee, but all of the sudden, his annual reviews start showing poorer performance, small mistakes get blown up as major job failings, and the employer finds some other excuse to fire him.  At that point it is much more difficult to prove the real reason.  Also, even if they fired you and said it was over the web site, you would still need to retain a lawyer and go through a lengthy suit, at which point you might still not get your job back but only some money damages.  So you have to consider whether you want to risk going through all that.

As I said at the beginning, this is just a broad overview of the issue.  Different jurisdictions can be more or less "friendly" to employees in these situations.  For a better and more accurate legal analysis of your particular situation, you would need to speak with an attorney familiar with the law in your area.  You might want to contact the local ACLU if you think it is going to become an issue.  I know they usually like such cases and often work for free or subsidize much of the costs.

Good Luck!
- Mike