Unlike the private sector, government employees enjoy certain Constitutional protections for workplace conduct. These protections include certain free speech rights including the right to appropriately criticize the employer. A recent unpublished decision from the Fourth Circuit Court of Appeals (which includes North and South Carolina) demonstrates the limits of such free speech rights. In Bowers v. Scurry, a human resources employee at the University of Virginia sent an e-mail to co-workers that criticized pending legislation supported by the University that would restructure employee pay plans. The e-mail was widely circulated, and UVA terminated the employee for misconduct.
She sued, claiming that the First Amendment’s free speech guarantee protected her criticism of the pay reform legislation. The Fourth Circuit rejected the claim, concluding that UVA’s interest in providing effective and efficient services to the public outweighed the employee’s right to free expression. The key to this decision was the fact that the employee’s e-mail contained her signature stamp identifying her as a human resources representative. The signature gave the impression that the e-mail represented the position of UVA’s human resource department and not just this individual, and as a result, created considerable confusion among recipients.
This decision follows a U.S. Supreme Court case last year concluding that government employees have limited free speech rights when the subject of their expression is part of their job duties. In this case, the pay plan was closely related to human resource functions. This gave the University the right to control the employee’s expressions of discontent with the new legislation.