Employer Terrorism

Ewald (ewald@ctaz.net)
Fri, 20 Dec 1996 10:18:24 -0700

This article was found in usenet.


Employer Terrorism
Thu, 19 Dec 1996 07:36:28 -0800 (PST)
Richard Alcorn <ralcorn@igc.apc.org>

Employer Terrorism: Suppressing Free Speech

The December 7, 1996 New York Times published an article, 'Lawmaker Says
V.A. Punishes Doctors for Speaking Out on Gulf Illness'. The subtitle,
'2 views of dismissal: budget cuts or retribution?', highlights the
problem employees face speaking out on issues suggesting government
culpability and incompetent or dishonest leadership. The story deals
with doctors who have testified before a congressional investigation
into Gulf War Syndrome and are now finding themselves targets for
dismissal. One doctor reported after testifying he was told, "I was in a
lot of trouble. They told me basically it was their policy that there
was no gulf war syndrome. They told me that I was simply fabricating
things." The employer's actions, firing the employees and maligning
them, are good examples of economic terrorism directed against people
who have made an honest attempt to question a governmental decision with
lawful Free Speech.

Anyone familiar with the labor movement knows that employers regularly
retaliate against employees who lead efforts to organize their
workplaces. While this practice is illegal, employers know that the law
effectively sanctions their actions by providing minimal penalties
against violators. Once again, this is an example of economic terrorism
used by employers against employees who exercise lawful Free Speech.

A recent United States Supreme Court ruling has further empowered
employers to use economic terrorism as a tool against anyone who speaks
up in the workplace. The May 31, 1994 decision in 'Waters v. Churchill'
(114 S.Ct. at 1880) has effectively stripped Free Speech guarentees from
all working Americans. In the 'Waters v. Churchill' case a nurse,
Churchill, was fired for complaining to a co-worker about hospital
policies during a dinner break. The U.S. Court of Appeals for the
Seventh Circuit ruled her termination was unlawful. Churchill's speech
was a matter of public concern- "the hospital's [alleged] violations of
state nursing regulations as well as the quality and level of nursing
care it provides its patients,"(977 F.2d 1122) was protected. The court
also held her speech was not disruptive.

The Court of Appeals also noted the employer had not used the
Churchill's actual speech as the basis for termination. "If the employer
chooses to discharge the employee without sufficient knowledge of her
protected speech as a result of an inadequate investigation into the
employees conduct,"" the employer runs the risk of eventually being
required to remedy any wrongdoing whether it was deliberate or
accidental." (977 F.2d 1127)

The United States Supreme Court reversed the Court of Appeals holding
that government employers should conduct an investigation before
terminating employees, where constitutionally protected free speech
rights might be involved, however, this investigation does not need to
meet traditional legal standards, only those of a 'reasonable manager'.
Employers are allowed to use hearsay evidence and select witnesses based
on their assessment of credibility. No judicial review of the facts is
required, if the employer has met the 'reasonable manager' standard. In
eliminating the protection of a jury trial the Court acknowledged the
procedure, "may under some circumstances violate the First Amendment
Nonetheless, not every procedure that may safeguard protected speech is
constitutionally mandated."(114 S.Ct. at 1881)

The dissenting Supreme Court Justices wrote,

"The First Amendment demands that the Government respect its employees'
freedom to express their opinions on issues of public importance: As
long as that expression is not unduly disruptive, it simply may not
provide the basis for discipline or termination. The critical issues in
a case of this kind are (1) whether the speech is protected, and (2)
whether it was the basis for the sanction imposed on the employeeGiven
the posture in which this case comes to us we must assume that
Churchill's statements were fully protected by the First Amendment.
Nevertheless, the plurality concludes that a dismissal for speech is
valid as a matter of law as long as the public employer reasonably
believed that the employee's speech was unprotected. (See ante at
1888-1890). This conclusion is erroneous because it provides less
protection for a fundamental constitutional right than the law
ordinarily provides for less exalted rights including contractual and
statutory rights applicable in the private sector Ordinarily, when
someone acts to another person's detriment based upon a factual
judgment, the actor assumes the risk that an impartial adjudicator may
come to a different conclusion. Our legal system generally delegates the
determination of facts upon which important rights depend to neutral
factfinders, notwithstanding the attendant risks of error and
overdeterenceThe risk that a jury may ultimately view the facts
differently from even a conscientious employer is not, as the plurality
would have it, a needless fetter on public employers' ability to
discharge their duties. It the normal means by which our legal system
protects legal rights and encourages those in authority to act with care
The plurality, observing that managers "can spend only so much of their
time on any one employment decision," ante, at 1890, adopts a rule that
invites discipline rather than further discussion, when, such disputes
arise. That rule is unwise, for deliberation within the government, like
deliberation about it, is an essential part of our "profound national
commitment" to the freedom of speech. (Cf. New York Times 376 U.S, at
270, 84 S.Ct, at 721.) A proper regard for that principle requires that
before firing a public employee for her speech, management get its facts
straight."(114 S.Ct. at 1880,1881)

Because the Supreme Court decision is their interpretation of the United
States Constitution, it is possible for individual states to enact
legislation to effectively overturn the decision of the Supreme Court
and restore Constitutional Free Speech protection to millions of
government workers. I believe it is also possible to extend Free Speech
protection to all working American. I am developing a 'binding
referendum' do that in Massachusetts and hope to encourage other folks
to do the same across the United States.

Rich Alcorn
"Political rights do not originate in parliaments; they are rather forced
upon them from without. And even their enactment into law has for a long
time been no guarantee of thier security. They do not exist because they
have been legally set down on a piece of paper, but only when they have
become the ingrown habit of a people, and when any attempt to impair them
will meet with the violent resistance of the populace."

--Rudolf Rocker (Anarcho-Syndicalism, 1938)
Fight superstition and pseudo-science:
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The James Randi Educational Foundation: http://www.randi.org/
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