Constitutional Rights at Work

This installment of NATCA’s Know Your Rights series will explain the basic information bargaining unit employees need to understand about constitutional rights at work. Specifically, the most important thing for bargaining unit employees to know is that they need to be aware that they have certain constitutional rights while at work, but these rights are often severely limited.

Employees often have questions regarding privacy, free speech, and what information can be asked of them. This installment will provide a nutshell overview of these issues.

Do I have “Freedom of Speech” at work?

Yes, you do, but within reason. Federal employees have the same right to be protected from unwarranted government interference with their speech as any private citizen. However, this does not give you an “absolute” right to say and write whatever you want as a federal employee.

Speech must be protected by the First Amendment in order to protect an employee from potential discipline. In order to be protected, it must be related to a matter of “public concern,” which is a determination made in each individual case by the courts.

Generally, speech is considered to be on a “matter of public concern” when it has to do with political, social, or community issues. Examples of “public concern” speech include: letters written to newspapers critical of tax increases and the way revenues were handled by a public employer and personal comments about a sitting President and policies or events involving the President. An example of an area found not to be of “public concern” was where an employee circulated a survey regarding “employee morale” as an internal office matter. For some examples of the law on this issue, see the Supreme Court decisions:

• Pickering v. Board of Education, 391 U.S. 563 (1968)
• Mt. Healthy City School District v. Doyle, 429 U.S. 274 (1977)
• Connick v. Myers, 461 U.S. 138 (1983)

If your speech is on a matter of “public concern,” the courts will still apply a “balancing test” to determine if your interest in commenting on the matter outweighs the Agency’s interest in promoting “the efficiency of the public service.” Cases at the Supreme Court have come out in many directions regarding this issue, so there are no guarantees that your speech will ultimately be protected. Also, the importance of your speech can be undermined if it is determined that you knew what you were saying was untrue.

The bottom line is, you do have a right to free speech on the job as a federal employee, but there are limitations and you need to consider your actions carefully in order to avoid discipline. Consult with your union representative or LR representative before you test the limits of this right in the workplace.

Do I have a Right to Privacy at work?

Again, the answer is a highly qualified “yes.” First, employees must cooperate in non-criminal administrative investigations or risk discipline. Second, employees cannot be subjected to “unreasonable searches” without a warrant, as long as they have a “reasonable expectation of privacy” in your workspace.

Investigations
Regarding investigations, the law is set out in Kalkines, v. US, 473 F. 2d 1391 (1973). In that case, the court found that an employee who had been fired for refusing to cooperate in an investigation of his on-the-job conduct could not be terminated, because he had not been given a warning that the information he provided would not be used in a criminal investigation. The court discussed the issue at length, noting that it had previously found that a governmental employer is not barred from insisting that relevant information be provided and the public servant can be removed for not replying if they are adequately warned that they are subject to discharge for not answering and given the assurance that any replies cannot be used in a criminal case. Citing Uniformed Sanitation Men, 392 US at 285, the court emphasized that “public employees subject themselves to dismissal if they refuse to account for their performance of their public trust, after proper proceedings, which do not involve an attempt to coerce them to relinquish their constitutional rights.” The court went on to say that “proper proceedings” consist of a warning of the consequences of not cooperating (i.e. discipline or discharge) and informing the employee if the investigation was a criminal matter or not. [Kalkines, 473 F.2d at 1393]

In practical terms, this means that a federal employee can be compelled to cooperate fully in a purely administrative investigation when they are informed that they can be discipline for failing to cooperate and they are given an assurance, called a “Kalkines Warning,” that the information they provide cannot be used against them in a criminal proceeding.

NATCA-represented employees and NATCA representatives should recall that, if no “Kalkines warning” is given, they are probably facing a criminal investigation, and they should immediately terminate the interview and the employee should seek criminal defense counsel.

Searches
The Agency can conduct a search of your workspace if they have a warrant. If they do, it is clearly a criminal matter and the employee had best obtain criminal defense counsel immediately. Under other circumstances, the Agency can only search your workspace if you do not have a “reasonable expectation of privacy” in your space. Typically, this means you have a private office instead of a cubicle, as the Supreme Court has found some offices to be so open to fellow employees or the public that no expectation of privacy is reasonable. [O’Connor v. Ortega, 480 US 709. (1987)]

Even if you have an expectation of privacy, you must establish that the Agency’s search was unreasonable, and that your expectation of privacy outweighs the Agency’s need to ensure efficient operation of the workplace. In general, the Supreme Court has made it very difficult for federal employees to do this, having held that “work-related” searches generally “satisfy the Fourth Amendment reasonableness requirement.” [O’Connor v. Ortega, 480 US at 717-18]

Examples of searches upheld by the courts include searches for evidence that an employee is guilty of work-related misconduct such as stolen office supplies, and a search for non-investigatory work-related purposes, such as finding needed files.

Summary
Federal employees do have constitutional rights at the workplace, but they are often quite limited. In most instances, it is best to proceed with caution when testing the limits of free speech at work. In investigatory situations, if an employee is given the appropriate warnings, full cooperation is required or discipline may be imposed. In general, federal employees should not expect to find a strong right to be free from searches of their workplace and should act accordingly. Please consult your NATCA representative or LR representative if you have any questions on these subjects.