"Riding with the Cops and Cheering for the Robbers:" Employee Speech, Doctrinal Cubbyholes, and the Duty of Loyalty

Abstract

This Article will analyze court and arbitrators' decision dealing with employees' free speech rights in relation to the employees' overall "duty of loyalty" to their employers. Guidelines are suggested for labor and management practitioners who consider disciplining employees for breaches of loyalty, specifically speech regarding management of the company, its service, or its products. It is our thesis that, with selected exceptions, it is difficult to predict speech that addresses matters of "public concern" and speech that does not, especially within a collective bargaining or union context. More importantly, given that a threshold public-concern test is satisfied, as suggested by Judge Frank Easterbrook of the Seventh Circuit, such "[o]pen-ended [Pickering] balancing... create[s] unavoidable risks and costs for well-intentioned public employers, risks that the doctrine of qualified immunity reduces but not to zero." Employees have a similar risk, although not involving judicial immunity. Their risk is dismissal from employment when a court or arbitrator will not immunize their speech. Under the current status of constitutional and arbitral case law, the end result for employees desiring to maximize their chances of remaining on the job is this: "Keep your criticism to yourself." More often than not, application of a Pickering balancing process in disloyalty cases will result in a decision for management. Despite the flaws associated with the Pickering test, we see no better alternative to a case-by-case balancing approach in employee speech cases. Whether the status of the law makes for good policy and economics is an open question.