Takeaway: A public employer may impose restraints on the job-related speech of its employees that would be unconstitutional if imposed on the public.
A public utility did not violate the First Amendment when it prohibited an employee suspected of misrepresenting the reason for his absence from speaking to witnesses while the situation was investigated, the 9th U.S. Circuit Court of Appeals recently ruled.
The plaintiff worked for the Springfield Utility Board (SUB) in Springfield, Oregon, as a safety and environmental coordinator. SUB policy stated that employees were expected to keep unscheduled absences and tardiness to a minimum. SUB further required that, except in an emergency or when there is an illness, requests for time off must be submitted to a supervisor in advance. SUB policy also warned that dishonesty of any type would generally result in immediate dismissal.
In August 2019, the plaintiff took unscheduled time off. He emailed SUB's HR manager, claiming that he would be out all day working on his kids' school/sport registrations to ensure they were ready for school the next week. Four minutes later, he emailed a co-worker, writing, "I'm looking at your boat slip right now, headed to the Pig N Pancake." The plaintiff later attempted to delete this email.
After discovering that the plaintiff may have misrepresented the reason for his absence from work, SUB hired two attorneys: one to investigate the plaintiff's suspected dishonesty related to his work attendance...
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