Joel Dillard

Representing Mississippi Workers

The Mississippi Workers' Rights Blog

Homosexuality and Bostock's sex discrimination analysis

You may have heard something about our subject for today. As the headlines shouted it Supreme Court outlaws discrimination against gays or something like that. And yes, that is the most important practical element of the Court's decision. It is something that a lot of people have been working on for quite some time - including here at this firm, as we have discussed more than once on this blog.

But the headline just scratches the surface. Most people probably do not realize just how important this case will be - and for reasons that having nothing to do with homosexuality. It will probably be cited tens of thousands of times in the next few years, often in cases having nothing to do with sexual orientation. I've already cited it twice, and the case has only been out a week or so. The logic of the case is revolutionary - simple, but transformative.

The key is the word because. Title VII says an employer cannot discriminate against any individual . . . because of such individual's race, color, religion, sex, or national origin. As I have said previously, the logical view is that this means that any employer action which differentiates between the sexes is unlawful sex discrimination.

In Bostock the Court agreed. It interpreted because as meaning a strict kind of what is called but for causation. The analysis is simple: if you imagine the same person in the same situation, and simply switch the sex, would they be treated differently? If so, this is discrimination because of sex. It does not matter what else is going on, what other factors are at play. Thus, it isn't discrimination based on homosexuality which is illegal, per se. It is just that discrimination based on sexual orientation will typically also be sex discrimination. It's about biological sex, not sexuality.

For example, imagine a man named Pat is fired. Is it discrimination? To find out, just imagine Pat were a woman. Change absolutely nothing else. Would Pat still have been fired? So, for example, if Pat is fired for sleeping with Larry. Does it matter that Pat is a man? If the answer is yes then this is sex discrimination. If the answer is no then it is not. No matter why the answer is what it is, the mere fact the answer is different because Pat is a man means it is discrimination against Pat for being a man - not for being gay necessarily, but for being a man.

This logic has surprising consequences. To take one example, there will be no more man's dress code and woman's dress code: no man can be penalized for wearing hair or clothes that meet the woman's dress code, or vice versa. Decades of caselaw goes out the window. Willingham v. Macon Telegraph Publishing Co., 507 F. 2d 1084 (5th Cir. 1975).

In fact, at first glance the decision would appear to mandate complete sex-blindness by employers. (One minor exception remains the Bona Fide Occupational Qualification (BFOQ), which we've discussed before.) Putting aside the BFOQ, any rule or decision which - even in an indirect or circuitous way - acknowledges the existence of sexual differences between employees needs careful consideration.

So, to take an even more surprising example, those subject to the Act can no longer penalize people for joining single-sex clubs.

What does this mean for efforts to combat discrimination - particularly sexual harassment? Does this mean the employer cannot see sex differences when trying to eliminate discrimination in the workplace? Not quite. It can consider the sex of the victims, but not the sex of the perpetrator.

Lets revisit Pat. If Pat supervises two employees, Nancy and Tom, and Pat treats Nancy much better than Tom because Pat prefers women, then the employer can fire Pat for doing so - as long it would fire Pat regardless of whether s/he is herself a man or woman. It is not about Pat's sex, but the sex of Pat's victims.

Back to an employer having a rule punishing people for joining same-sex clubs. Here we are getting into weird, speculative considerations. But suppose Pat joins the Drones club. The club has a rule that only men can join. If Pat were a woman and successfully managed to join, she would not be punished. But because Pat is a man, he is punished. Thus the punishment is itself discriminatory. What then, can be done to combat this kind of sex discrimination without committing sex discrimination in the process? Change what you are penalizing Pat for. Don't penalize Pat for joining the Drones, penalize Pat (when Pat is on the admissions committee of the Drones) for refusing to admit Nancy while admitting Tom. This is not about Pat's sex - you would penalize Pat for discriminating against Nancy regardless of whether Pat was a woman - but about the sex of Pat's victims, which is an acceptable consideration.

Finally, note that the same logic applies to race. Anything other than pure race-blindness will be entering a mine-field - regardless of the employer's good intentions. It will be interesting to think about the consequences there. Suppose a supervisor named Derrick posts on Facebook There is no country on earth where black people have more opportunities than America. Anyone who disagrees can just get out. Hard to imagine Derrick's own race won't determine whether the employer punishes Derrick. And how should an employer treat employees that join a racially exclusive club?

And religion may be an even more fascinating area.

Free Speech Fundamentals: Government employees have free speech rights only when they speak as private citizens.

The Supreme Court has said that government employees do not leave their constitutional rights at the door when they go to work. They have the same rights to free speech as any other citizen. But things can be tricky because - in a sense - they are the government. And the people in charge in government are supposed to be able to control what the government does, including its speech. In other words, when government employees speak, and the speech is part of their job as government employees, then the government boss can control the speech as it wishes.

This is the reason for the Supreme Court's Garcetti rule. Among other things, the Garcetti rule says that a government employee's speech is protected only if they are speaking as a private citizen, and not as a public employee.

This should be pretty straightforward. It should mean that PR people and others with responsibility for speaking to the public or the media are unprotected when engaging in that public speech. Unfortunately, the Court has interpreted it far too broadly, to include even purely internal speech, such as when an employee blows the whistle on a supervisor's misconduct by reporting it up the chain of command. The Court says this is usually part of the government job, and so unprotected.

But there is a limit. When an employee goes outside the chain of command and blows the whistle directly to the public or the media, it is typically not part of the job. The courts have made it quite clear in caselaw interpreting Garcetti that when a public employee takes his job concerns to persons outside the workplace in addition to raising them up the chain of command at his workplace, then those external communications are ordinarily not made as an employee, but as a citizen. Davis v. McKinney,​518 F.3d 304, 313 (5th Cir. 2008). This remains true when speech concerns information related to or learned through public employment. Lane v. Franks, 134 S. Ct. 2369, 2377 (2014). The critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee's duties, not whether it merely concerns those duties. Id. at 2379.

One interesting Fifth Circuit case on this point is Anderson v. Valdez, 845 F. 3d 580 (5th Cir. 2016). In​Anderson, a staff attorney for a state court sent a letter to the state supreme court and filed a disciplinary complaint with the State Commission on Judicial Conduct describing what he believed to be malfeasance by one of his bosses. His boss (the judge he had reported) retaliated by preventing him from working with another judge. The Court held that it was well established law that these sorts of complaints to people outside the employer are typically speech as a private citizen, and thus protected by the First Amendment.

Unfortunately, however, that was not the end of the saga. Three years later (five years after the retaliation) the case was still dragging on, and the employer tried again to throw the case out and made a slightly different argument. Anderson v. Valdez, 913 F. 3d 472 (5th Cir. 2019). This time the government claimed that the staff attorney had promised - as part of his job duties and oath of office - that he would report misconduct to the state commission. For this reason, the report was part of his job and not speech as a private citizen. This time, the Fifth Circuit agreed with the employer and noted that this was an exception to the usual rule. Because his job duties specifically included reporting to the commission it was not protected speech.

The Anderson saga provides many, many lessons for us as lawyers - sad, unfortunate, cynical lessons. But for the employee the main lesson should be to take great care to consult with an attorney about what will and will not be protected speech if you are planning to go out on a limb and blow the whistle on your boss. The steps you need to take are likely to be counterintuitive.

This post is part of a series on free speech rights of government employees. Read the rest below:

Appellate advocacy

You'd like to have a little help...

Here you are, finally, after working your tail off in discovery and intense preparation, ready to try the case, ready to win. You're a magician on cross examination, and the jury eats out of your hand... then the Judge screws it up. Everything now depends on the appeal. A cold, distant battle of legal intellects, virtually all on paper, is the only hope to save your case.

But you're a trial lawyer. Treatises and libraries are not your thing. Besides, you've been working on this case for so long you can no longer see it objectively. The arguments feel obvious, tired and rote.

As a judge I know once said, It is easy to tell when the trial lawyers are pursuing their own appeal. They are too close to the case, and they don't really understand how appellate judges think.

So you need to get a fresh perspective. Maybe you could convince some appellate nerd out there to do the appeal for you?

I'm here to help out.

If this is you, I'd be happy to help. Over the last decade-plus, I've had the opportunity to clerk for Judge Timothy B. Dyk on the Federal Circuit Court of Appeals and to litigate on behalf of the federal government in appellate courts all over the country. I love legal treatises and libraries to an almost unhealthy extent. I once spent the better part of a month-long vacation in the Library of Congress researching intellectual property law. For a time I read every single Supreme Court opinion which came out (around 2,000 pages per year).

Of course, I no longer have time for such excesses of legal nerdery. I have a robust private practice in plaintiff's-side employment law. So why am I offering to help you with this work? Because, though I love trial work, my favorite part of the job remains legal research and briefing.

As for the terms, I'm happy to discuss a variety of options with you, including hourly, flat-rate and - in the right case - a hybrid contingency arrangement to help limit up-front costs.

And not just on appellate briefing. If you are facing a legally complex dispositive motion and need help, let me know.

Work samples

Poker: Lawyers playing games in litigation

Studying games is a good way to understand strategy in real life situations - including in litigation. We discussed the ultimate game of perfect information - chess - last time. Today, the opposite: poker.

Poker: incomplete information, probability and psychology

Chess we described as a game of perfect information and no luck. In poker we find things quite different. In, for example, Texas Hold'em, you start betting when you only know two of the cards in play, when there are going to be 2x + 5 cards in play by the end of the hand. The game depends on two qualities in the player:

Probabilities in poker

Before you can even begin guessing who is bluffing and how to play your hand, you have to know how strong it is. The simplest part of this task - that every casual player can manage - is to know which hand you have, and which other hands it wins and loses to. This is fundamental, like understanding how the chess pieces move.

Next you have to know during the game the probable strength of what you will have when the hand is over. For example, before any cards are laid down, which has better chances to win, a pocket pair of 10s or AK - and how much better? Later on, what are the chances that you complete your flush on the turn or the river? or your straight? You cannot bet intelligently without knowing the answer.

At the final level of statistical sophistication, you can improve further by understanding not only your own probabilities, but, based solely on the cards on the table (and in your hand), the probabilities of the strength of hand of other players.

Once these probabilities are mastered, you can generate a theoretically correct value for each hand at each moment. This is the baseline of information needed to decide how to bet. Most casual players do not take advantage of all this reliable information revealed by the game.

In a very short game, luck outweighs probability and it doesn't matter so much. But as more hands are played, the balance shifts. In theory, over an infinite number of poker hands, the end result should approach that of true calculation.

Betting psychology

Psychology begins with the player understanding and managing himself. How do you react to an unlucky loss? How do you react to a win? A strong grounding in the probabilities helps manage these tendencies.

And then we get to what most people think of as the essence of poker: unreliable information. This comes in two types: information from the bets themselves, and information from tells and other understandings of psychological tendencies.

Is that big bet a sign of confidence in a strong hand, or a bluff designed to drive out the competition and win by default? Is a small bet a sign of weakness, or is it designed to increase the size of the pot by keeping people in the game for longer?

Then there are tells, the most famous element of poker. This is how the pros eat the online poker nerds at the table in Vegas. It involves reading another person's physical mannerisms for information about their emotional state and thus the strength of their hand. Experience and close observation reveal tells over time. Sunglasses, hats, carefully maintained breathing and posture, and even video replay review - these are the tools used at the highest levels to try to limit a player's own tells.

Poker and litigation

Litigation is more like poker than chess, especially in two crucial phases. First, in the pre-trial phase, during discovery, all the participants have incomplete information and must make intelligent guesses of how to value the case, and where to look to improve its value. Later, at trial, the psychology of the jury becomes key. In voir dire, the lawyers read tells to help pick a jury. And during trial, the lawyer is always probing where the jury is psychologically and adjusting his approach in response.

Chess: Lawyers playing games in litigation

Studying games is a good way to understand strategy in real life situations - including in litigation. And what better games to study than two of the all-time greats: chess and poker?

Chess: perfect information and imperfect players

The two key things to realize about chess are that it is - in theory - a game of perfect information and no luck.

More than that: there is a database containing every significant game ever played for decades - including every significant game you have played, and that your opponent has played. Before you play a game, you and your opponent each have the opportunity to study this information in any way you like in order to prepare.

And even beyond that: in today's game you and your opponent will each have access to supercomputer programs that are far better at understanding and playing chess than any human ever has been. Before the game, you and your opponent each have the opportunity to learn from these computers and the way they analyze games.

So what determines the outcome? Our limits and imperfections as players.

There are at least four ways to win (or lose): Tactics, Preparation, Strategy, and (lets call it) Luck. First, if you can see further ahead tactically than your opponent, you will probably win. You will be able to see when your opponent has made a mistake and how to punish it. You will be able to see opportunities and threats that your opponent will overlook. You can set traps: inviting-looking moves that appear to win immediately, but which in fact end up losing just a few more moves down the road.

To win this way, you must have strong logical powers, short-term memory capacity and raw cognitive speed - what they call calculation - as well as practice in recognizing tactical patterns in the game. In forcing lines - where there are only one or two choices that make any sense in a series of moves - the best players will be able to calculate a dozen moves or more down the road to see who comes out ahead. The same is true in endgames, where there are only a few pieces left. But no matter how deeply you calculate, if you overlook just one option along the way, it could cost you the game.

Second, you can win a game by being better prepared than your opponent, studying particular lines in the opening that they will not expect and surprising them with some home-cooked preparation that you understand better than they do.

To win this way takes a lot of research and private study of games, analyzing different options to great depth. It also requires a nearly perfect long-term memory, so you can carry all that information with you into the heat of combat in every game.

Third, you can win if you have a better strategic understanding of certain situations. Things like what tends to makes a pawn weak, whether it is better to have an open or closed position given the placement of the pieces, which spaces or sides of the Board will be most critical to control, whether it is better to get a material advantage or the initiative in a given moment, where to put pieces now so they will be most effective later in the game.

When players are evenly matched in tactics and preparation, strategy will usually decide the outcome. This requires a very different kind of study than preparation. This is about studying and understanding the reasons behind different moves and ideas. This is also where the greatest rewards of thoughtful experience are found. Trying ideas and seeing what happens, analyzing your positions, helps develop an intuition about what works and doesn't strategically in a game, a general sense that a certain situation calls for pursuing a certain idea for how to improve the position.

Lastly, there is what I have called luck, but which really isn't luck at all. Remember, there is no luck in chess, no chance events, no accidents. This is actually about psychology. For example, if you happen to lose a brilliant strategic game by a stupid tactical mistake, it can be hard to forget it and move on to the next game. You can go on tilt, where you find yourself unable to focus properly, and so make a series of additional mistakes. A player can also get tired, sick, hungry, or distracted for any other reason. Or perhaps someone underestimates you, and takes a risk that they don't think you will be able to punish them for, and you manage to find the right way to respond. In this way great players can lose to lesser ones. Or perhaps they take a risk that it seems like you ought to be able to punish, and you overpress trying to take advantage, and wind up with greater weaknesses yourself as a result. Or maybe someone is, because of the tournament situation or a psychological reason, too desparate to force a win when they should be content with a draw. They can wind up losing.

Chess and litigation

Trial practice is most like chess after the discovery process is concluded, when (in theory) all the information that can be presented at trial has come out and there are no more secrets lying in wait. The Judge and the opponent are known quantities. Their past actions are all public, on the docket, ready for study. The jury is unknowable - they are more like a toss of the dice - but there are some similarities to a game of perfect information at this point. The same four elements are key: Tactics, Preparation, Strategy and Luck.

But before trial itself, probably the better model is poker. That will be the subject of our next post.

The new paid leave law for coronavirus, in plain english

Between April 2, 2020 and December 31, 2020, certain amounts of mandatory paid leave will be available to certain employees under federal law. This is the result of H. R. 6201, called the Families First Coronavirus Response Act. But as usual, news reporting is weak and unclear, and the law itself is very technical and a mess to read. The law has eight sections and the text is forty-three pages long. And you basically need to already know what it says - and what both the Fair Labor Standards Act and Family Medical Leave Act say - in order to understand it.

Want to know what the law says in plain english? You are in the right place.

The law has some significant appropriations to health departments in the government, sections addressing free/reduced school lunch during Covid-19 school closures, unemployment insurance, free Covid-19 testing, and other important issues. But our focus right now will be on the sections dealing with leave.

There are two completely separate types of Covid-19 leave in the law. The first is broad but short, and gives two weeks paid leave for various Covid-19 impacts. The second is much longer, but deals only with leave to care for children during school/daycare closure. (A third section gives a tax credit to employers to pay for the leave. We won't be discussing it here.) The two provisions are very different, and so it is crucial to avoid getting the different requirements and benefits mixed up.

But at the outset it is important to note three big limits in the law. First, the law does not apply to large employers (more than 500 employees). Second, the application to small employers - those with fewer than 50 employees - is at this point a bit unclear (as will be discussed below). Third, it is also inapplicable to healthcare employees and those working in emergency response. With that said, let's get down to it.

DIVISION E: Two-weeks Covid-19 paid leave

You are entitled to two weeks of fully- or partially-paid coronavirus leave for any of the following reasons:

  1. You are issued an official quarantine order from any government body (full pay, but capped at a max of $511 per day)
  2. A treating doctor or nurse has advised you to self-quarantine (full pay, $511/day cap)
  3. You have symptoms of Covid-19 and are going to get diagnosed (full pay, $511/day cap)
  4. You are caring for someone (anyone?) on quarantine or self-quarantine under #1 and #2 above (2/3rds full pay, $200/day cap)
  5. You are caring for your son or daughter during a school/daycare Covid-19 closure (2/3rds pay, $200/day cap)
  6. Other circumstances (looks like HHS will make a rule defining this) (2/3rds pay, $200/day cap)
Some key points about this leave:

Lastly, there is one great big caveat. The law authorizes DOL to issue a rule to exempt small employers when the leave would jeopardize the viability of the business as a going concern. At this point, it is completely unknown what this will mean in practice. I have doubts that a blanket exemption of businesses with fewer than 50 employees would pass judicial review, but it is difficult to tell at this point how DOL (or the judiciary) is going to approach this issue.

DIVISION C: Longer leave for school/daycare closure due to the pandemic

The second type of leave is described in Division C of the Act. It provides for a longer period of leave (as under the FMLA), but it is only available if the employee is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency. In other words, this only covers leave to watch your child during a school closure. Leave for your illness or others' illnesses is still limited to the normal unpaid FMLA leave. This does not provide paid leave to avoid exposure or practice general social distancing.

It also does not apply if you are able to telework. Which means that you will be expected to watch your children while working from home. (It is unclear how employer rules prohibiting this will be applied. If the employer has a rule which prohibits simultaneously teleworking while providing childcare, then the employee is probably eligible for Covid-19 leave from work for school closures. Practically, I expect this means the employers will suspend this rule during the outbreak.)

School-closure leave: Paid or unpaid? Both.

The first 10 days of school-closure leave is unpaid - likely because you are expected to take your general Covid-19 leave under Division E during this time. In addition, if you have accrued annual or sick leave you can use it during these ten days to get paid. After that, the leave is still only sorta paid leave. It is actually only 2/3rds pay - not full pay - and is capped at $200 per day and $10,000 total per employee during the closure.

School-closure leave: Employers and employees covered

Unlike the one-year period under the FMLA, leave under this section is available to an employee who has been employed for at least 30 calendar days.

As for which employers are covered, on its face it initially looks like almost all will be. But this is an area where the language and intent of Congress has gotten awfully confused.

First of all, once again, mega employers with over 500 employees are not covered. And DOL is authorized to pass a rule exempting employers with fewer than 50 employees when the law would jeopardize the viability of the business as a going concern.

Second and even more problematic, if an employer with fewer than 50 employees breaks the law, the employee cannot sue in court. Instead, it looks as though the only way the employee can enforce this part of the law against an employer with fewer than 50 employees is to bring a complaint with DOL and convince them to initiate an enforcement action.

One final note, by the way, I love The Mississippi legislature should take note. Our legislature's methods, record-keeping and public information platforms are about a century out of date. In addition to its bizarrely session-focused procedures and deadlines, there is no legislative history, no real way to track what is happening and what it means. We should all be deeply embarrassed for them. I think it is time for a reboot.

The NLRB gaslights labor lawyers with its absurd Alstate Maintenance decision.

For some time now I’ve been meaning to write about the National Labor Relations Board’s decision in Alstate Maintenance, LLC, 367 NLRB No 68, which came out last year. But I just can’t.

It’s too outrageous. I cannot even fathom how the Board somehow thinks it is free to rewrite Supreme Court decisions. This issue was settled, resolved, completely put to bed by perhaps my favorite case of all time, NLRB v. Washington Aluminum, 370 U.S. 9 (1962).

And the majority doesn’t even mention it. It makes no effort to try to distinguish or explain what it is doing on this backdrop. Almost like the majority is completely unaware of the case. Which they aren’t. Every single one of those guys read this case in law school, I can promise you. And the dissent, in the very first sentence, pointed out the great big Washington Aluminum problem the majority was ignoring.

Thing is, they could confront the issue and explain their reasoning, try to explain why Washington Aluminum proved unworkable, or somehow problematic, and justify a change in the rules. But they cannot just ignore it. They just can’t.

In Washington Aluminum an employee said to his coworkers something to the effect of it is too cold in this factory with the heaters broken, we can't work in these conditions. Lets get out of here. And they left. This was concerted activity, because they acted together to address an issue at work.

In Alstate Maintenance an employee (a Skycap) said to his coworkers something to the effect of these guys don't tip, and they are always terrible to work with, let's not serve them. And so they refused them service. The Board said this was not concerted because... I don't know, um, reasons? I still cannot tell what the actual reasoning is here.

I could see saying what the Skycaps did in Alstate Maintenance was perhaps unprotected if they crossed the line to inappropriate conduct, but to say it was not CONCERTED? They f....... I mean, they walked off. THEY walked off. As a group. TOGETHER. That’s what concerted means. It was literally the facts of Washington Aluminum. And it was obviously about the terms and conditions of work. Tips are compensation under the FLSA. To say they are just a matter between the customer and employee is basically making every customer harassment or mistreatment case outside the purview of the Act. Every single sentence in Alstate Maintenance makes me feel like I’m losing my mind, like somehow maybe I’m the crazy one, as if I’m missing something somewhere. The Board is gaslighting me.

So I guess I’m not going to write a blog post about Alstate Maintenance. I just cannot handle it right now.

Martyrs & Professionals: the perspective of a teacher on union influence.

Today’s guest post is by James Dillard, a talented calculus teacher and observer of institutions.

One of the things that drew me to teaching was the flexibility it afforded to live and work in many parts of the country. Coming out of college I was eager to see what our country had to offer. I have taught in California, Wyoming, Virginia, and the state of Washington. While I knew each region would have its cultural quirks, I was not expecting the difference a union makes in the school.

Martyr: the mindset and experience of the non-union teacher

During what I would call my formative years as a teacher, I worked at a non-union high school in the densely populated DC suburb of Woodbridge, Virginia. When I first arrived at the school, I was starting my third year as a math teacher and was just beginning to get comfortable with my teaching style.

It was 2011 and the economic recovery was in full swing, yet teachers had not received a raise or a step increase since at least 2008. As a result, teachers who came in from elsewhere were sometimes paid more than those that had dedicated their careers to the school. The only way around this was to leave the district and come back a different year. This was very hard to do, though, because all of the neighboring school districts had noncompete agreements and would not release teachers from their contracts.

The 2011-12 school year was the first year that teachers in Prince William County Schools received a raise, and it was only a small cost-of-living adjustment to account for inflation. I believe I only received one step increase in five years of teaching.

The staff was very dedicated, and freely gave of their time to help students learn. Teachers were expected to stay at least once a week for two hours after school for tutoring, and as a member of the math department, I was encouraged to stay twice. This was structurally enforced because there were dedicated buses that stayed late on Tuesdays and Thursdays specifically to take students home who had stayed for tutoring. Students were required to be in a classroom if they took the late buses home and were not allowed to ride them without a pass from a teacher verifying that they were receiving tutoring or participating in a club.

Those teachers who did not stay to tutor were regularly reminded that they should and that teaching was about doing what was best for students. As a young teacher, I did not think twice about the idea of staying to tutor my students; my job was to help them succeed.

I was also the boy's junior varsity soccer coach. During soccer season, practice was everyday after school for two hours and games twice a week that often kept me from home until 10 or later at night. Because I was coaching JV, my job title was as an assistant coach and there was no dedicated funding for assistant coaches. As such, the head coach had to decide how much of his pay he would allocate to me and his varsity assistant coach. This ended up being about $1500 for the season. I coached because I enjoyed it, not because of the pay.

This school, as with schools everywhere, had trouble with finding enough substitutes. This was especially true on Mondays and Fridays. To discourage us from taking Monday or Friday off, the principal refused to look for subs on those days. When teachers were out, it was up to their department to figure out how to get the classes covered. This meant we had a rotating schedule of IOU’s based on who had lost their planning period to cover for another teacher. We were not happy about this, but there was nothing we could do.

Teachers are expected to attend graduation without compensation. Teachers are expected to take the time to remove all decorations and personal teaching supplies from the classroom at the end of each school year and return them at the beginning of the following year, without compensation for their time. Teachers must supervise, take tickets, or chaperone a minimum of two sporting events or dances each year without compensation.

Still, when I moved from Virginia to Washington, it was a very sad time. I loved the people and school where I was working and had invested a lot of time and energy into making it the best school I could.

Professional: the mindset and experience of the union teacher.

I now teach at a high school in an Olympia, Washinton suburb. The district has an active union and the switch from a non-union to a union job was quite a culture shock. I have now taught here for four years and each year I have received a full step increase along with an additional COLA. This fact alone is a culture shock. In Virginia, any step increase was a miracle. In Washington, annual step increases are a minimum expectation.

At first glance, the teaching atmosphere didn’t seem that different, but as the school year got going, little things became apparent. At the beginning of the year, a sign-up sheet was passed out to determine when people were going to stay after school to tutor. Being a new teacher, at the school, I wanted to make sure that I was contributing, so when there were spaces left blank, I made sure that I signed up so that tutoring would be covered. It wasn’t until I was actually tutoring that I learned that I would be compensated for my extra time at the standard teacher hourly wage. This was a shock. Between my wife and I, we did not need the extra pay, and I was hoping to spend more time at home with my kids, so from then on, I have decided to leave the after-school tutoring for those that need the extra compensation. I still volunteer to tutor before and after school, but only during my contract hours.

When I was asked to coach JV soccer, I found out that there was an actual salary schedule that dictated my pay based on my experience. If I agreed to coach, I would have made more as a JV soccer coach in Washington than I would have if I was the head soccer coach in Virginia and didn’t share my pay with assistant coaches. Not only that, but my compensations would have increased with each year I coached. Even with the additional pay, I turned down the coaching position so I could have more family time.

If I take tickets at a sporting event, I am compensated. Graduation attendance is not compensated, but it is also not mandatory. I am not asked to remove all of my decorations at the end of each year, and if I am told that I must change classrooms that I teach in, there is additional pay to compensate me for the added time required to move. If there aren’t enough substitutes available, and I have to cover for a teacher during my planning period, I am given extra compensation for the time that I lost.

All of these little things create a very different relationship between the teacher and the school where they work. Teachers think of themselves as professionals who must be compensated for any professional work that they do. Teaching in the school is much more transactional. Any time there is an additional task required of a teacher, the expectation is that it is compensated. The idea that teachers must go the extra mile because we care about students and if we don’t do it for free we are not good compassionate teachers is just not a discussion. Even after teaching here for four years, it is still a shock.

I should also mention the added freedom teachers have to speak their minds to the administration. There is a lot less fear here: teachers know they can stand on their rights and will not be pushed around.

Occasionally there are tasks that the district or school asks us to participate in that require more work, but no additional compensation. The district finds it very hard to get volunteers for these tasks. For instance, the district is going through a new math curriculum adoption. The district agreed that any meetings required outside of the bargained professional development days would be compensated, but that the additional work required to learn and implement the pilot curriculum would be done on the teacher's own time. Because of this, I was the only math teacher at my school willing to participate in the textbook adoption process. Unions bring a culture to a school that says we are professionals and our time is valuable. If you wish to use my time to improve the school, I expect to be compensated. With this mindset, if the district really does need volunteers, they almost always must look to the outside community. Teachers are professionals, not volunteers, and they will happily let the administration know this.

The Union Difference

From my experience, districts that do not have a union encourage teachers to be martyrs for their school. They shift the burden of providing for students from the administration to the poorly compensated classroom teacher. The message is, you care about your students, so you do what must be done to make the school better. Teachers are reminded regularly that teaching is a calling, and that we chose this profession, not because of pay, but because we care about children.

In a unionized school, the teachers remind the district that we are professionals and that if they want the most for the students in their district, they must pay for it. The burden of who is responsible for offering things to students shifts back to the administration.

Government employees have more rights when they speak through their union

The Supreme Court said in 2018 that [w]hen a large number of employees speak through their union, the category of speech that is of public concern is greatly enlarged, and the category of speech that is of only private concern is substantially shrunk. Janus v. AFSCME, at 2473.

The Court therefore appears to embrace the idea that speech which might be an unprotected private grievance when one employee does it becomes protected by the First Amendment when the union is involved in supporting that grievance. This idea was central to the Court’s decision in Janus that, because union grievances and bargaining were of public concern, employees had a First Amendment right to choose for themselves whether to support them or not.

This dovetails nicely with many of the practical reasons that an employee engaged in free speech criticizing her government employer is more protected when she does it through and with her union:

There is an initial hurdle, of course. Before the union can be effective it must have the support of a core of people determined to improve things at work. And the stronger it grows in membership and support, the more effective all of your speech will be.

But most people don’t realize that you do not need any outside union to come in and help you. You can start a real union all by yourself, with just a little simple paperwork and the support of your friends and coworkers.

And in the end there can be no question that government employees benefit from standing together with each other in a union, and speaking out about the issues that must be addressed to improve the job.

And when they do so, they are protected from retaliation by the First Amendment. A strong legal representative that understands this area of law is essential to every public employee union - particularly in a state like Mississippi.

Unconstitutional rules restricting government employee speech

If you work for the government in Mississippi - whether it is a public school, a jail, a city, or a state agency - the chances are good that your boss has an unconstitutional policy restricting your speech. These policies seem to be rampant in the state.

Teachers, does this sound familiar? Teachers [are] not [to] discuss school matters with anyone - well, that’s an unconstitutional rule. How about this one: do not take any school problems other places, or discuss it with others - yep, unconstitutional.

Cops, recognize this one? Communications must be expressly forwarded for approval to your chain-of-command: completely unconstitutional.

And I’m sure you’ve all heard of this one: No making unfavorable comments on the operations and policies of the Department to the media or on social media: LOL unconstitutional.

These kinds of rules infringing government employee speech are subject toexacting scrutiny under the First Amendment:

A speech-restrictive law with widespread impact . . . gives rise to far more serious concerns than could any single supervisory decision. Therefore, when such a law is at issue, the government must shoulder a correspondingly heavier burden, and is entitled to considerably less deference in its assessment that a predicted harm justifies a particular impingement on First Amendment rights.
Janus v. AFSCME, 138 S. Ct. 2448, 2472 (2018).

For example, in the recent case of Liverman v. City of Petersburg, a police department had a social media policy which forbid the dissemination of any information on social media that would tend to discredit or reflect unfavorably upon the Department, including negative comments on the internal operations of the Bureau or on the specific conduct of supervisors or peers. 844 F. 3d 400, 408 (4th Cir. 2016). The court correctly noted that this was a virtual blanket prohibition on all speech critical of the government employer and noted the astonishing breadth of the social networking policy's language. Id. The policy was clearly unconstitutional.

But even if it isn’t some official policy, even if it is just an email or a spoken comment from a supervisor, it can still be unconstitutional. For example, in Moonin v. Tice, the K9 chief sent an email stating that all communication by line employees with outside persons about the work must be expressly forwarded for approval to your chain-of-command. Communication will be accomplished by the appropriate manager/commander if deemed appropriate. Any violation of this edict will be considered insubordination and will be dealt with appropriately. 868 F. 3d 853, 859 (9th Cir. 2017). The rule was unconstitutional because [t]he troopers' freedom to offer their informed opinions about the direction of the K9 program on their own time, as concerned citizens, is a prerogative that the First Amendment protects but that Tice's edict forbids. Id. at 864.

The bottom line: if you work for the government in Mississippi, the chances are good that they are violating your constitutional free speech rights. Next week we will discuss the most effective ways to address the issue.

What is a prior restraint on speech, and why is it unconstitutional?

It is among the most well-established ideas in constitutional law: prior restraints are typically unconstitutional.

Prior restraints on speech and publication are the most serious and least tolerable infringement on First Amendment rights . . . the Supreme Court has routinely held that prior restraints on protected speech are presumed to be constitutionally invalid.
Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 556, 559 (1976). In fact, for a while the Court thought that the First Amendment’s free speech clause was only about banning prior restraints. See generally Chemerinsky, Constitutional Law: Principles & Policies, at 892-93, 918 (2d Ed. 2002) (discussing Patterson v. Colorado, 205 U.S. 454, 462 (1907) and 4 William Blackstone, Commentaries on the Law of England, 151-152 (1769)).

But what does it actually mean? What is a prior restraint? No one seems to know. Chemerinsky, supra, at 918. The courts sometimes say that the difference is that a prior restraint prevents speech in advance and other rules merely punish them after the fact. But as a well-respected scholar put it, [a]ll punishment for speech - whether under prior restraints or other laws - occurs after the expression takes place.Chemerinsky, supra.

From my point of view, the answer is one of lexicographical ipse dixit: a prior restraint is whatever the courts call a prior restraint. In practice this means either a court-issued gag order, or a system of licensure and censorship. [T]he classic type of prior restraint is where the government requires a license or permit in order for speech to occur. Chemerinsky, infra, at 932 (discussing Lovell v. City of Griffin, 303 U.S. 444 (1938)). To invalidate such schemes - where speech is to be submitted to government censors before publication - was a core purpose for the First Amendment.

For example, in Chiu v. Plano Indep. Sch. Dist., 339 F.3d 273 (5th Cir.2003), the Fifth Circuit held it was unconstitutional to require pre-approval from school officials before a petition could be circulated among attendees at a school board meeting. See also Brooks v. Auburn University, 412 F. 2d 1171 (5th Cir. 1969) (university president cannot require pre-approval of speakers on campus)

Three requirements must be met for a licensing scheme to be valid. Chemerinsky, supra at 933.

  1. The purpose must be to address a clear and present dangerous threat to a protected competing interest. Wood v. Georgia, 370 U.S. 375 (1962).
  2. There must be clear standards leaving almost no discretion to the licensing authority.City of Lakewood v. Plain Dealer Publishing Co., 486 US 750, 759 (1988).
  3. Licensing can be required only if it takes place under procedural safeguards designed to obviate the dangers of . . . censorship. Freedman v. Maryland, 380 U.S. 51, 58 (1965). There must be a procedure that prevents the policy from being misused or abused, with appeal to court where necessary to correct a mistake or abuse.

The bottom line: any system of prior approval and censorship of the speech of private citizens is likely to be unconstitutional.


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