Full question:
I work for a local college as a Development Writer. I also free-lance for a local newspaper. When I was hired, my boss told me I could continue to free-lance as long as there was no conflict of interest. I also signed a form about conflict of interest. I just accepted an assignment for a free-lance story on a non-traditional student graduating from another local college. My boss recommended (did not say 'don't do it', that I not do the story since it was about a student from another college. (However this college offers nursing and not any engineering degrees and the college I work for does not offer nursing, does not have non-traditional students and is an engineering college.) Since the story was about a lady graduating at age 53 in nursing, and she has an incredible nationally-known environmental background, I didn't see any conflict of interest and did the story. I have also not signed any non-compete with the college I work for. Do they have a case against me?--I know they can fire me for any reason in the state of Indiana, but if they do, and if I want to pursue it, would I have a case? I know a lot of details are missing here, but I was hoping to find out if was an issue of freedom of speech here as well as the no-compete issue. Thanks!
- Category: Civil Rights
- Subcategory: Free Speech
- Date:
- State: Indiana
Answer:
The answer will depend on all the facts involved, such as the content of the article you wrote and whether you have tenure. It is possible that the engineering college may claim it puts the other college in a more favorable light regarding non-traditional students and will detract from their enrollment. In any case, if you are terminated, it is quite possible that the employer will not supply a reason or give another reason, in which case tenure may be necessary to claim a right to continued employment.
The Supreme Court of the United States decided a case which supported an employer's rights to discharge an employee for disloyal, disruptive speech and conduct. In Waters v. Churchill , 511 U.S. 661, 128 L.Ed.2d 686, 114 S.Ct. 1878 (1994), the Court considered a claim by a discharged public hospital nurse that her First Amendment rights had been violated. She had criticized the hospital's cross training policy, and later complained to another nurse about the hospital's staffing policies and supervision. The 7th Circuit Court of Appeals had found that when a public employer fires an employee for engaging in speech which is later found to be protected under the First Amendment as a "matter of public concern," then the employer is liable for violating the employee's free speech rights regardless of what the employer knew about the speech at the time of the termination. The Supreme Court vacated that opinion, and remanded the case for further hearings on what the motivation of the employer was. If the employer's motivation was the nurse's earlier, general criticism of cross-training policies, then the discharge would violate the First Amendment. But if the motivation was the employer's reasonable belief after a reasonable investigation that the nurse had engaged in a conversation with a colleague that criticized her supervisor and discouraged the transfer of that colleague, then the discharge would not violate the First Amendment since such criticism was potentially disruptive to the efficient operation of the hospital, and as such, was unprotected speech.
Freedom of speech, the United States Supreme Court has held, must survive a two-stage test in order to be constitutionally protected. First, the speech must be of "public concern," relating to a matter of "political, social, or other concern" to the larger community. If it is not speech of that kind, it is simply not protected. Second, even if it meets that test, it must still be weighed against any threat it poses to the maintenance of workplace discipline or of co-worker "disharmony."
For further discussion, please see:
http://cc.bingj.com/cache.aspx?q=%22first+amendment%22+%22conflict+of+interest%22+tenure&d=4814658428141997&mkt=en-US&setlang=en-US&w=89b3f804,445387f9
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